Researching a Potential Request

Before you file an open records act request, you should first undertake some brainstorming and research regarding your potential request. Advance research will make sure that you do not send your request to the wrong agency, or waste time waiting for a response when the records you are seeking are already publicly available. In addition, research done in advance will be invaluable when you begin drafting your request, as detailed in Section 2.0. This section begins by giving you a basic idea of the universe of records available under Colorado open records laws, and some broad categories of records which are usually exempt from disclosure. This discussion is followed by a list of issues you should research regarding your request, some suggested resources for that research, and some particular issues to keep in mind when requesting criminal justice records.

1.1. Categories of records available under CORA and the CCJRA
Under Colorado open records laws, records held by government agencies are presumed to be open for inspection or copying by any member of the public unless otherwise exempted by law. The following four points should give you a rough idea about the universe of records available under Colorado open records laws. You should keep these general guidelines in mind as you begin brainstorming and researching the types of records that you might request.

• Any person, including any organization, can request to inspect or copy public records. • Any writing made, maintained or kept by a government agency in Colorado is presumed to be open to public inspection unless the law says otherwise.
• The list of entities covered by Colorado’s open records laws is very broad. It includes all branches of government—judicial, executive, and legislative. The laws cover any state agency or department, counties, cities, towns, school districts, special districts, public highway authorities, regional transportation authorities, housing authorities, organizations or institutions that receive public funds, and organizations whose members include government officials.
• The Colorado open records act includes all forms of both physical and electronic materials. Under open records laws, therefore, you can request papers, books, maps, photographs, cards, tapes, recordings, digitally stored data, emails, and any other form of documentary material that exists. The term “digitally stored data” includes databases maintained by government agencies.

1.2. Research the records you are seeking
Before you begin drafting an open records act request, you should first try to define as best you can the information you are seeking, what government agency may have that information, and figure out as specifically as possible what records might contain that information. In some cases, this will be easy, for example, if you know you are looking for a specific report from a government agency, or a particular letter from a government official. In other cases, however, you might only have a general idea about the information you want, and not know very much regarding what type of record would contain that information, or which government agency keeps that kind of record. Below are some questions you should consider as you try to determine the types of records you are seeking.

Am I seeking information made, kept or maintained by a Colorado government agency? As explained in the introduction to this guide, Colorado’s open records laws entitle the public to access information from all branches of Colorado’s government (legislature, courts, and executive branch) at all levels of Colorado’s government (towns, cities, counties, state agencies, and private organizations that receive public funds or have government officials as members). Colorado’s open records laws cannot, however, provide you with access to records held solely by federal agencies. If you are seeking records from a federal agency, you will need to file a FOIA request. There are many helpful FOIA resources available for free online, for example, the Reporter’s Committee for Freedom of the Press maintains a helpful FOIA guide at http://www.rcfp.org/fogg/index.php.

Tip: There is no automatic “federal document” exclusion to the Colorado open records laws!

Be wary of any Colorado government agency that tells you that it cannot disclose a record or information simply because it is a “federal document.” If that record is kept, made or maintained by a Colorado government agency, it is generally subject to Colorado’s open records laws, regardless of whether it also is kept by, or contains information supplied by, a federal agency.11 For example, if you request a copy of an agreement between a Colorado county and the Environmental Protection Agency, under Colorado open records laws the county should disclose any copy of the agreement kept in the county’s files, even if the agreement was drafted by federal employees. See Sections 5.0 and 6.0 of this guide for information on what you should do to investigate further if an agency withholds records on these grounds.

What agency is likely to have the records I seek? Determine as best you can the agency or agencies that are likely to have the information you seek. If you are unsure of what agency might have the records you are seeking, consider the following research options:

• Research any news articles that have been written regarding the issue. Thos articles might contain references to government agencies or officials that were a source for the article. Tip: Go local! In addition to looking for news articles using a search engine like Google, consider also using a dedicated news search engine at the public library, which may be more accurate and permit access to older articles for free. In addition, articles from small local newspapers are often not easily located through online searches. If the issue you are concerned about may have been covered locally, consider researching the local newspaper’s website directly. A list of local Colorado newspapers can be found at http://www.usnpl.com/conews.php.
• The State of Colorado maintains a website with information on various agencies and their missions. Many county, cities and towns also have their own websites. Searching through these websites might provide you with information about which government agency or department has the information you seek.
• Call or visit the government agency before you draft your request to ask if they have the types of information or records you are seeking. In some cases, the government agency may be able to direct you to another agency that has the records you want.Tip: Document, Document, Document! Anytime you visit with a government official, make sure to write down the name and title of the government official, the time and date you spoke, and the information that he or she provided. If you can communicate with the government official by email or fax, that is an easy way to keep a written record of all communications.

What are the specific records I want to request? Try to figure out the types of documents you plan to seek from the agency. As described further in Section 2.0, being as specific as possible in your records request is more likely to make the request effective, generate a timely response, and avoid unnecessary fees. If you are unfamiliar with the subject matter you are investigating or unsure of what types of records might contain the information you are seeking, some basic research in advance can make a significant difference in the response you ultimately receive. Consider the following research ideas prior to drafting your request:

• Research news articles, as described above, noting the names of any documents, reports, or other records that are described in the article relevant to your issue.
• Research the government agency’s website, as described above, noting the names of any documents or information referenced on those websites.
• Call or visit the government agency and describe the information you are seeking.
• Government agencies often operate in accordance with laws, regulations, and internal policies specific to those agencies. Searching through laws, regulations and/or policies related to an agency might uncover the existence of specific records containing the information you seek. For example, you might find a law that requires a government agency to conduct an internal audit every year, and you could request a copy of the audit. Or, you might uncover a police department’s internal policy that describes all the different types of records that are supposed to be completed by officers each time an arrest is made, and you can make sure to request each type of record relevant to you. Or, you might locate a regulation that requires that the county submit certain categories of data on environmental hazards to a state agency which allows you to determine that the state only publishes a portion of this data online—so you make a request for all the raw data. The laws, regulations and internal policies that pertain to a government agency are commonly posted or referenced on the agency’s website.
• Organizations that frequently make public records requests, such as the ACLU, commonly post documents obtained from those requests on their websites. Through an internet search, you might find organizations that have made previous open records acts related to your issue. If so, you can review any available material posted on those websites to inform your own request.
• Talk to someone who is familiar with the types of records kept by the government agency. For example, if you are interested in obtaining information regarding an arrest, a criminal defense attorney in the area might be able to tell you all the types of records typically kept by that police department. As another example, if you are researching city contracts, a local business person who has done business with the city might be familiar with all the different types of records used in such transactions.

1.3. Determine if the records you are seeking are already publicly available
Before you spend time drafting an open records act request and potentially incurring charges to obtain records, make sure that the records are not already available. Government agencies should make public records easily accessible online without the need for a specific open records act request.12 Online publication is already a reality in many circumstances, especially for larger government agencies and departments.

If you have researched the government agency online and/or have talked to employees of the government agency, you might already know whether the records you are seeking are already publicly available on the agency’s website or at a government office. If not, however, you should call the agency or review their website to see if the information you want is already publicly available. The following resources might also be helpful:

• Links to all types of state public records and data can be found at the Colorado State Publications Library at http://www.cde.state.co.us/stateinfo/.
• Many criminal justice agencies, like county sheriffs and police departments, post crime statistics on their websites. The crime statistics an agency voluntarily publishes on its website, however, may be a much smaller subset of the total statistics the agency actually tracks and records.
• Colorado’s open records laws mandate that some types of records are always open to the public. Many of Colorado’s cities and counties have already put this information online, including online access to searchable databases. Information that is already widely available online from county and municipal websites includes property taxes, property documents filed with the clerk and recorder, voter registration information, health department inspection reports, foreclosure records, and public contracts, bids and proposals.
• Many government agencies publish their internal policies and guidelines on their websites. In addition, as discussed above, reviewing an agency’s internal policies can be a helpful background research for your records request.
• When journalists obtain public records for a story, more news organizations are posting those records online when publishing the news article. Look for hyperlinks to public records in news story itself or as a link to the side of the story. In addition, advocacy organizations like the ACLU often post public records they’ve obtained on their website.

“Nothing can be more contemptible than to suppose Public Records to be true.”
‐William Blake

Tip: Dig Deeper! Discovering that the records you are interested in have already been made publicly available is often be the beginning of a records quest, not the end. Often, a review of publicly available records will reveal the existence of an additional record or underlying data that was not voluntarily disclosed by the government, but is nevertheless public information. Section 5.1 discusses searching for clues in publicly disclosed records that may lead to other records requests.

1.4. Are the records I’m seeking exempt from public disclosure?
Making an open records act does not require any familiarity with Colorado’s open records laws, any prior journalism experience, or a law degree. All it requires is simple curiosity and the willingness to make a request. Before making an open records act request, you do not have to figure out whether the records you are requesting are legally exempt from disclosure. If you ask for a record and the government agency believes that record can be legally withheld, they will withhold the record and are required to tell you the legal basis for doing so (if you request, as discussed in Section 2.0). There is no penalty, other than perhaps a little lost time, if you request records that turn out to be legally exempt from disclosure. The worst thing you can do is to not ask for a record simply because you are unsure of whether or not the record might be exempt.

As discussed further in Section 5.0 of this guide, the most appropriate time to evaluate whether or not an exemption prevents the disclosure of a record you have requested is after the custodian responds to your request and refuses to produce a record. Nevertheless, some requestors want to get a general sense, in advance, for whether or not the records they are seeking are likely exempt from public disclosure. The following guidelines can be kept in mind as you research and draft your request. If you want to do more advance research regarding whether or not the records might be exempt from disclosure, Section 5.3 contains more information and resources related to evaluating exemptions.

• Records regarding the allocation or expenditure of public funds are generally public records open to inspection. For example, contracts, bids, requests for proposals, and any other business record involving the expenditure of public funds, are public records. One thing is true of all governments ‐ their most reliable records are tax records.  Inspector Finch, V for Vendetta. Tip: Follow the money! Of all the different types of records available under Colorado’s open records laws, records that show how the government is spending the public’s money—such as contracts, bids, invoices, expenditures, employment contracts, settlement agreements, etc.—are almost always considered public records and are less likely to be subject to any exemptions.
• Records related to elections and voter registrations are public records open to inspection.14
• Colorado laws often exempt records where minor’s privacy interests are involved. For example, records regarding children, juveniles, adoption, custody, and individual student records may be exempt from disclosure.
• Colorado laws often exempt records where sensitive or personal financial information is involved. For example, tax records and trade secret information may be exempt from disclosure.
• Colorado laws often exempt health and medical records. For example, medical records, mental health records, alcohol treatment records, and pharmacist records may be exempt from disclosure.
• Even where privacy interests prevent records from being disclosed to third parties, the person to whom the records pertain to may be able to obtain the records. For example, in some cases juvenile records or mental health records can be disclosed if the person is requesting his or her own records, or is requesting on behalf of a third party who has authorized the release of the records to the requestor. This topic is discussed further in Section 2.6.
• Even if a public record would normally be public and disclosed, it can nevertheless be withheld if the agency shows that disclosure would do “substantial injury to the public interest.”15 This is a high standard, and the burden is on the agency to demonstrate that disclosure would cause substantial injury to the public interest.
• Records made, kept or maintained by a criminal justice agency are governed by the CCJRA, not CORA. 16 The standards of the CCJRA, which treat “criminal justice records” differently than “public records,” are discussed in Section 1.5 below.

1.5. Special considerations regarding the Colorado Criminal Justice Records Act
As noted above, requests for “criminal justice records” are governed by CCJRA, not CORA. A criminal justice record means any writing made, maintained, or kept by a criminal justice agency. Generally, the term criminal justice agency includes law enforcement agencies like as county sheriffs, city police departments, the state patrol, and courts ruling in criminal cases.17 Although many of the standards in the CCJRA are similar to those in CORA, several differences should be considered as your research your potential request, as detailed below.

Records of official actions must be disclosed by criminal justice agencies when requested. Official actions include all records of any arrests, indictments, releases from custody, parole decisions, sentencing decisions, and dispositions of cases. A criminal justice agency must provide all records related to official actions when requested.

Criminal justice records made that are not “official actions” should be disclosed unless the agency determines that disclosure would be contrary to the public interest or is otherwise exempted by law. When the record does not fall into the definition of an “official action,” CCJRA permits the custodian the discretion to withhold the record if disclosure of the records would be “contrary to the public interest.” The Reporter’s Committee for Freedom of the Press’s Colorado Open Government Guide has compiled a list of different types of particular criminal justice records and the current law regarding the handling of requests for those types of records, including the following: Accident reports, police blotters, 911 tapes, investigatory records, arrest records, compilations of criminal histories, information regarding victims, records of confessions, records regarding confidential informants, police techniques (including internal policies), and mug shots.

How to respond to a criminal justice agency that refuses to disclose non‐“official action” documents on the grounds that disclosure would be contrary to the public interest is discussed further in Section 5.0.

Criminal justice records cannot be used for financial gain. A provision of the CCJRA states that criminal justice records may not be used for financial gain, for example, selling the records themselves or selling products or services to persons identified using criminal justice records.18 If you are seeking criminal justice records, you should be aware that the criminal justice agency may ask you to certify that the records will not be used for financial, or “pecuniary,” gain, before agreeing to release records.

Criminal justice records that would normally be disclosed may be withheld if an investigation or prosecution is pending. If you are requesting non‐“official action” records that are being used in a pending criminal prosecution, or if you requesting non‐“official action” records related to an ongoing internal investigation, be aware that the timing of your request might make a difference in the agency’s response. If you are requesting records related to an ongoing prosecution or investigation, the criminal justice agency is much more likely to withhold the records and may have a better legal basis for doing so. Whenever possible, you should wait until the investigation or prosecution has concluded before you request those records.