By Josh Pike | Staff Writer
A Dec. 15 decision by the Colorado Court of Appeals Division A in a lawsuit between local attorney Matt Roane and Archuleta County Clerk and Recorder Kristy Archuleta upheld the right of litigants to acquire documents from public entities through Colorado Open Records Act (CORA) requests while in litigation with them.
Roane’s lawsuit concerns the county’s denial of a CORA request by Roane for a recording of an Archuleta County Board of County Commissioners’ (BoCC) work session due to the request being tied to an ongoing lawsuit filed by Roane against the county.
The order, written by Judge Lino Lipinsky de Orlov with the concurrence of Judge Rebecca Freyre and Judge Terry Fox, the other two judges on the panel, outlines the history of the case, stating that Roane’s lawsuit against the BoCC concerning an alleged violation of Colorado Open Meetings Law had been subject to limited discovery, with both Roane and the BoCC being allowed to request up to five documents each.
However, the order explains, neither requested any documents and, later, while cross motions for summary judgment by both parties were pending, Roane submitted a CORA request asking for a recording of a BoCC work session.
Following Archuleta, the custodian of records for the BoCC, denying the request on the grounds that it was not open to inspection pursuant to the Colorado Supreme Court ruling in Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980), Roane filed a separate suit against Archuleta in District Court in Archuleta County, where Judge Jeffrey Wilson sided with Roane and ordered the county to allow Roane to inspect the recording.
The county then appealed, stating that the inspection order was in contradiction with Martinelli and Colorado Supreme Court case City of Colorado Springs v. White, 967 P.2d 1042 (Colo. 1998).
The appeals court disagreed with that interpretation, with the opinion beginning by stating that the any exceptions to the right of inspection under CORA must be specifically stated in the law and that the parties in the suit agree that the only potentially applicable exception in the CORA bars disclosures prohibited by supreme court rules or court orders.
The order then assesses the county’s claims that Martinelli and City of Colorado Springs bar the use of CORA to “supplant discovery practice in civil litigation.”
The order notes that the Martinelli case had not involved the use of CORA requests to secure documents in a civil case and that the CORA had only been relevant to the case in the fact that the police officers whose personnel records the plaintiff was seeking had argued that such requests were barred under the CORA and thus should be barred in the discovery process for the litigation, an argument the court rejected, noting that the CORA is not intended to supplant the discovery process in civil litigation.
The order then notes that the court finds that Martinelli stated that the CORA could not be used to bar the production of documents otherwise producible in civil litigation, but did not bar litigants from using the CORA to obtain documents from public entities during litigation.
The order continues that City of Colorado Springs also does not support the county’s claims as the case did not involve a CORA request during pending litigation, although the court notes that the case indicates that the reasons for a request of a public document through the CORA are not relevant to the request, unlike in the discovery process for civil litigation.
The order also notes that the CORA contains mention of the law’s usage in pending litigation and that the lack of a specific exception in the CORA barring the procurement of documents by parties in civil litigation with a public entity, which exists in other states’ open records laws, also supports the court’s interpretation that such procurement is not prohibited.
The order also states, in contrast to the county’s claims, that Roane’s request did not violate Rules of Civil Procedure, noting that the only potentially relevant rule would be that the CORA could not be used to circumvent discovery limits, which had not occurred in the case since Roane was allowed up to five documents and had not requested any prior to the meeting recording.
The order concludes by upholding Wilson’s earlier order for the county to produce the recording for Roane’s inspection.
County Attorney Todd Weaver, representing Archuleta, comments on the decision in an email to The SUN, “My client and I are evaluating the Court of Appeals’ opinion but disagree with the Court’s ruling as it does not appear to follow precedence established by the Colorado Supreme Court. As a result, appealing the opinion to the Colorado Supreme Court is a distinct possibility.”
josh@pagosasun.com
