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Obtaining Legal Assistance
In some circumstances, even if you have a legitimate objection to a withheld record or excessive fee, the agency will simply refuse to budge. If you’ve exhausted all your efforts, you may want to consider obtaining legal assistance. Both CORA and CCJRA provide that you have the right to file a lawsuit in Colorado state district court to ask a judge to review the custodian’s decision. This section of the guide will describe some different types of legal assistance, and discuss some issues to think about if you decide to hire a private attorney or seek free legal assistance.
6.1 Before filing a lawsuit
Gather and organize your records and correspondence. Before you ask an attorney for any kind of legal assistance, make sure that you can succinctly and clearly explain the basis of your objection to the custodian’s action. Make copies of your correspondence with the custodian that the attorney will be able to keep and review. Also make copies of any records you have received that illustrate your objection. If you are disputing the custodian’s decision to withhold a document and have already done some research, let the attorney know about your research. If there has been some press coverage related to this issue in the past, or as a result of your actions, alert the attorney to the existence of that coverage and provide copies of news articles where possible.
Consider hiring an attorney to evaluate your potential claim. Obtaining legal assistance does not necessary mean that you have to be ready to file a lawsuit and incur the expenses associated with litigation. As a first step, consider having an attorney evaluate your potential case and provide an opinion regarding the strength or weakness of your potential claim. Some attorneys provide free initial “consultations,” meetings, to discuss your potential case before you are charged any money. If you are trying to locate a private attorney, you can ask if they provide free initial or low‐cost consultations. Some resources for locating private attorneys are listed in Section 6.2.
Consider hiring an attorney to send a letter demanding production of the records. Unfortunately, some government agencies refuse to respond appropriately to records requests until and unless an attorney gets involved. If you believe that the custodian is refusing to take your request or your objections seriously, you can consider hiring an attorney to send a “demand letter” to the agency insisting that it disclose the wrongfully withheld records. A demand letter from an attorney might prompt the custodian to revisit her decision and disclose additional records. Alternatively, a demand letter from an attorney might be passed on to the government agency’s legal counsel, who might make an independent assessment regarding whether the custodian’s decision to withhold records was proper.
6.2 Filing a lawsuit
Whether or not you should file a lawsuit to obtain records involves a number of considerations. On one hand, a lawsuit under Colorado’s open records laws may be decided much more quickly than other types of lawsuits—probably within a few weeks or months. Thus, a lawsuit seeking records may be less expensive than other kinds of litigation. On the other hand, even a relatively uncomplicated lawsuit will costs at least hundreds of dollars in filing fees and thousands of dollars in attorney fees, and even a seemingly straightforward lawsuit can ultimately end up with unforeseen complications and expenses. While a court can require the government agency to pay fines and to pay your attorney fees if the court agrees with you that the agency should have disclosed the records you sought, courts may be also be deferential to decisions made by records custodians.
Before deciding whether or not lawsuit is a good option, you might want to ask yourself the following questions: How important are the records am I seeking? Does the government agency have a pattern of secrecy, or appear to be acting in bad faith, in a way that merits a legal challenge? Have I exhausted my appeals with the custodian, as described in Section 5.4, so I know enough about the withheld records, and the reason for the denial, to make a compelling case in court? Are there other organizations or community members who also want these records who can help support me with resources or help the court understand the importance of these records? This guide cannot provide you with any legal advice regarding a potential lawsuit, however, the following sections highlight some issues and options to consider.
Retaining a private attorney. If you want to seek legal assistance for the purpose of suing to obtain records, one option is to hire a private attorney to pursue the claim on your behalf. You may want to find an attorney who has experience and familiarity with lawsuits under the open records laws. The following are fee online resources for locating attorneys:
If you contact an attorney, you can inquire to see if the attorney offers free or low‐cost consultations to evaluate your potential case. You might also ask attorneys whether they offer a “contingent fee” arrangement for potential clients. A contingent fee agreement means that you will not have to pay some or all of the lawyer’s costs and fees until and unless the case is successfully resolved. The FindLaw website also has a “Guide to Hiring a Lawyer,” http://public.findlaw.com/library/hiring‐lawyer, that includes a discussion of commonly asked questions about retaining a private attorney.
Seeking free legal assistance. If you cannot afford an attorney, you can also seek assistance from organizations that offer free (also called “pro bono”) legal assistance. For example, the ACLU of Colorado is able to offer pro bono legal assistance in a very small number of cases, some of which have included lawsuits under the Colorado open records laws. The ACLU receives thousands of requests for legal assistance every year, however, and only is able to provide assistance with a very few select cases. Other organizations that offer free legal assistance may be similarly limited in the numbers or types of cases they take. If you want to request free legal assistance from an organization, send your request in writing, making sure to follow all the steps outlined in Section 6.1 for clearly describing your request and including copies of all documentation. In addition, follow the same general guidelines outlined on Page 32 for contacting journalists—if your records request concerns a subject matter that you believe is of broad public interest or you think the agency’s decision is noteworthy for other reasons—be sure to make that context clear in your letter.
If you are contacting the ACLU of Colorado, send your written request for legal assistance to:
303 E. 17th Ave., Ste. 350
Denver, CO 80203-1256
More information on requesting legal assistance from the ACLU of Colorado can be found at http://www.aclu‐co.org/docket/legal_help.htm.
Proceeding pro se. You have the right to file a lawsuit even if you do not have an attorney representing you. Filing a lawsuit without an attorney is referred to as proceeding “pro se.” If you represent yourself in court, you will be held to the same general rules and knowledge of the law as an attorney. The government agency will be represented by an attorney who is likely very familiar with court rules and the law regarding open records law requests. The law pertaining to your claim may include not just the Colorado open records act or other Colorado statutes, but also court decisions interpreting and applying those laws and other privileges. A pro se litigant bringing his or her own lawsuit under Colorado open records laws without the assistance of an attorney will likely be at a disadvantage.