A new report suggests a vast majority of Colorado government agencies have adopted the maximum “research and retrieval” fees allowed under the Colorado Open Records Act, making access to government records cost prohibitive for journalists and the public.
The paper, “A Return to Nominal-cy: Restoring a Proper Balance for CORA Costs,” was written by Justin Twardowski, a third-year law student at the University of Denver Sturm College of Law, and published by the Colorado Freedom of Information Coalition.
Twardowski analyzed the open records policies of school districts around the state, a sample he said was “fairly representative of public bodies in general.” He found that, of the 111 districts that have enacted, revised or reviewed their policies since 2014, 85% adopted the maximum research and retrieval fee allowed at the time the policy was made or changed. From July 2014 to July 2019, the maximum allowable fee was $30 per hour, and the cap increased to $33.58 per hour after July 2019.
The research also revealed that several of the districts charged the public more per hour in research and retrieval fees than they pay the employees tasked with performing the research and retrieval, with some earning less than $15 an hour in districts that charge the public $33.58 per hour.
THE SPIRIT OF CORA
Twardowski also examined CORA’s legislative history and relevant case law. CORA didn’t mention research and retrieval fees when it was enacted in 1968, according to the paper, but a Legislative Council committee had suggested public records custodians could charge “nominal fees in some cases” for inspecting records.
In the 2003 case Black v. Southwestern Water Conservation District, the Court of Appeals looked to this legislative history and concluded CORA permitted research and retrieval fees that were “nominal in comparison to the time spent responding to the volume of requests” and “did not constitute a burden contrary to the spirit of [CORA].”
“This decision brought the nominal fee standard from mere legislative history to a precedent binding on all Colorado trial courts,” according to the paper, and it also upheld research and retrieval fees of $15 per hour, or $20 for “exceptionally voluminous requests.”
In the 2013 case Mountain-Plains Investment Corporation v. Parker Jordan Metropolitan District, the Court of Appeals applied the Black precedent and concluded that CORA permits an hourly research and retrieval fee of $25, a rate the defendant used to justify charging $16,000 in CORA fees.
In 2014, the General Assembly enacted a research and retrieval fee cap of $30 per hour for CORA requests to “rein in the practice, by some records custodians, of quoting requesters exorbitant sums,” according to the paper. In 2019, the hourly fee cap was adjusted to $33.58 to keep up with inflation.
According to CFOIC Executive Director Jeff Roberts, before the cap was enacted, governments knew they could charge something for research and retrieval, but rates were “all over the place” with little standardization. However, the attempt to rein in fees appears to have had unintended consequences.
“Despite the good intentions of the legislation, this report shows that, in fact, what was meant to be a ceiling has now become the floor,” said CFOIC President Steve Zansberg, who is also senior counsel at Ballard Spahr.
EXPENSIVE INVESTIGATIONS
Twardowski cites several recent examples of the “burdensome cost” of obtaining public records. The Denver Post was quoted $10,000 by the Colorado Department of Revenue for records on the owners of marijuana business owners, the report states, and the newspaper was told it would have to pay at least $20,000 for the state health department to retrieve and review e-mails containing four coronavirus-related terms.
“Very few people, certainly fewer and fewer news organizations, can afford the types of fees that are being quoted,” said Zansberg. “And so a lot of otherwise legitimate news gathering and the public’s ability to access public records are going unfulfilled because of those prohibitive costs.”
Twardowski, a former teacher, said his interest in CORA was sparked when he started sending open records requests to resolve “lingering questions” he had about a grade-changing incident at his school. He later became a licensed private investigator and started looking into matters of public interest, often tipping off media about interesting findings.
He soon discovered CORA costs were prohibitive for someone on a teacher’s salary without outside funding. He found himself tailoring his CORA requests so they would be free — the fees don’t kick in until the second hour of work.
“I would say thank you, I would maybe wait a day out of courtesy, and then I would send out a follow-up that I had already planned,” Twardowski said.
“It was counterintuitive, because I could have been able to consolidate those. But instead there was this policy that basically forced me, due to my financial circumstances, to space things out and drag it out.”
POSSIBLE ALTERNATIVES
The CFOIC report looks at how other states handle research and retrieval costs and considers possible alternatives for Colorado.
Some states, including Ohio, West Virginia and New York, don’t allow government agencies to charge anybody research and retrieval fees, and requesters only have to pay for costs of reproducing the records. Other states, such as Illinois and Kentucky, only charge for personnel time when the records will be used for a commercial purpose. Still others, including Maine, Rhode Island and North Dakota, have maximum hourly charges for research and retrieval of $15 to $25.
The CFOIC paper “advocates for legislative reform to restore the balance the General Assembly originally envisioned for CORA.” The “ideal” solution would be to adopt the approach of Ohio and West Virginia and prohibit agencies from charging for personnel time used for research and retrieval, it states, but acknowledges “this approach is likely impracticable given the budgetary constraints of TABOR.”
The paper’s other recommendations include requiring agencies to provide itemized receipts to justify the charges and promote transparency, exempting non-commercial requesters such as news outlets and academics from research and retrieval fees, and adopting a model that “reestablishes the ‘nominal’ standard while maintaining a maximum allowable fee” in conjunction with itemized receipts.
“I hope maybe some state legislators take notice,” said Roberts, when asked how the CFOIC research might be used. “When you’re talking about issues like the pandemic and getting records about government’s response to the pandemic, journalists should be able to do that in a way that there shouldn’t be these cost barriers.”
—Jessica Folkerzp-pdl.com