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Reviewing/Appealing a response
The custodian’s response to your records request may take one of several different forms. The custodian may provide you with all the records you requested. Alternatively, the custodian may provide you with some of the records you requested, but withhold pages or portions of records on the basis that the records were exempt from disclosure. Finally, the custodian may not give you any of the records you requested. When you receive a response, the first step should be to examine the response itself, discussed in the first subsection below. If the custodian has withheld any documents, the next step is to make sure that the custodian has given you sufficient information for you to evaluate the basis for denying your request, as discussed in the second part of this section. Once you have adequate information regarding the legal basis for the purported exemption, the third step is to evaluate that exemption. If any exemptions or fees appear to be unjustified, this section will help guide you through the process of making a written objection. Finally, in cases where a written objection does not work to obtain the documents, this section concludes by suggesting some additional strategies to consider.
5.1 Examining the Response
Evaluate the responsive documents produced in comparison to your initial request. If your request was for a single specified document, clearly defined data, or a copy of a DVD, it will probably not take you much time to evaluate whether or not the custodian responded adequately to your request. If your request was broad or more generalized, however, it may take some initial examination on your part to determine whether or not you received the documents you requested. Take a look at the type of records produced and the records themselves, and take note of anything that seems to be missing. In addition, if your initial request asked for the custodian to provide you with a written statement identifying any documents that were withheld and the legal basis for doing so, do not automatically assume that the absence of such a statement means that no responsive documents were withheld or overlooked by the custodian. Occasionally, custodians might neglect to give you a written statement identifying that a type or category of records was withheld. If a type or category of records you requested appears to be absent without explanation, ask the custodian in writing to either confirm that there were no responsive records or identify any records withheld and the legal basis for the withholding.
Search for clues in the records produced to identify other records that you should have received or now want to obtain. As discussed in Section 2.3, records custodians may be responsible for producing records from numerous units and departments within an agency, and may themselves have little familiarity with the records you are requesting. Even the most diligent records custodian acting in good faith may be unaware of some category of responsive records. Closely examine the records you receive, and note any references to the existence of other specific records, or types or categories of records, that may have been responsive to your initial request but were not produced. If you discover the existence of records that you believe should have been produced in response to your initial request, send a written follow‐up to the custodian. If you discover references to records relevant to your issue that were not covered by your initial request, submit a follow‐up records request asking for those records.
Compare the records you receive to records that have been provided for similar past requests. If you researched your request in advance as described in Section 1.2, you may have already located public records produced in response to someone else’s similar open records request. If so, take the records produced in response to the past request and compare them to the records produced to you now. Note any instance where records produced by the custodian in the past are now being withheld. In some cases, the custodian might have disclosed records in the past only after a requestor raised objections or took legal action, or an attorney, the media, or an organization like the ACLU made the request. The custodian might be hoping to keep documents secret from you, even though they were released in the past, because the custodian is hoping you won’t raise objections or diligently pursue the release of the records through other strategies. If you suspect that records being withheld from you now are substantially the same as records that have been disclosed publicly in the past, send a written objection to the custodian. Clearly explain your objection, attach an example of the record that was disclosed in the past, and ask the custodian to release any similar records withheld from you now, or to explain the legitimate difference in disclosing the one record but withholding the other.
5.2 Identifying the legal basis for withheld records
If the custodian has determined that records responsive to your request are exempt from disclosure, they may be withheld in one of two different ways. First, the entire page of the document may be withheld. Alternatively, the custodian may have redacted information from a record before disclosing it to you. Redaction refers to blacking out or whiting out information exempt from disclosure to the public, like the following:
If you have requested that the custodian identify the legal basis for any withholding, as discussed in Section 2.7, then the custodian should state the legal basis for each redaction, identify any pages withheld, and state the legal basis for withholding each page. If the custodian has provided you with a detailed list identifying each record withheld, and the legal basis for each, you might able to skip directly to Section 5.3 below. Before moving on, however, you might want to read further to make sure that you have enough information to effectively evaluate whether the records were appropriately withheld.
In many instances, the custodian may have provided too little information for you to tell what was withheld, how much was withheld, and why. In these cases, before you can analyze whether the records were withheld appropriately, you need to first obtain more information from the custodian.
The following paragraphs in this section provide some examples of inadequate responses, and help explain why these responses are insufficient. Strategies for dealing with these types of responses by the custodian are discussed in Section 5.4.
- The legal basis for the withholding must be clearly identified and explained. Whether the custodian has withheld records by redaction or by refusing to disclose entire pages of records, the legal basis for the withholding must be clearly explained. It is not sufficient for the custodian to simply state “Exempt” or “Withheld pursuant to open records act.” The custodian must identify a particular law or privilege that applies to the record that was withheld. For example, the custodian must put next to a redaction (or provide in a separate list or letter explaining the redactions or withheld pages), “Withheld under C.R.S. § 24‐72‐ 204(3)(a)(IV)—trade secret.”
- If the records are withheld pursuant to the “public interest” exemption, the custodian must provide an explanation of the public interest involved. If the custodian withholds records based on a determination that disclosure would be contrary to the “public interest,” it is not sufficient for the custodian to simply state, “Withheld—disclosure contrary to public interest.” The custodian must provide some explanation of how the disclosure of that record would be “contrary to the public interest.”
- The identity and number of withheld documents should be identified. If the custodian withholds entire pages of documents, it is not sufficient for the custodian to simply state that some records have been withheld, without identifying how many records were withheld. For example, the custodian cannot say, “Pages withheld under C.R.S. § 24‐72‐ 204(3)(a)(IV)—trade secret.” The custodian may have withheld 1 page or 100 pages. The custodian should clearly identify the amount of records being withheld from the public, for example, “12 pages withheld under C.R.S. § 24‐72‐204(3)(a)(IV)—trade secret.” Or, if the pages were withheld from a consecutively numbered document or file, “Pages 2, 7, 8, 19, 27, and 28, withheld under C.R.S. § 24‐72‐204(3)(a)(IV)—trade secret.”
- The custodian cannot use a “catch‐all” legal justification to withhold clearly distinct records. A custodian cannot withhold an entire collection of records on the basis that a single record within that group contains exempt information. For example, consider a city’s file related to a contract bid, previously discussed in the tip on page 12. In this case, assume that the file contains 100 pages of documents composed of several different kinds of records, including a contract, a request for proposal, various email correspondence, and a 1‐ page confidential brochure from a software manufacturer. If the product brochure contains information protected by the “trade secret” exemption, the custodian may redact that information from the record and disclose the redacted copy, or perhaps withhold the entire 1‐page document. The custodian cannot, however, refuse to differentiate between the many obviously distinct records with in the file and withhold the entire file—including the contract, request for proposal and email correspondence—based only upon the “trade secret” information in the brochure. For each separate record withheld, the custodian must identify a specific legal basis that justifies the withholding. If you think the custodian has withheld numerous types of different and distinct records, and based the withholding upon one or more unspecified “catch‐all” legal grounds, follow the steps at the end of this section to request more specific explanation from the custodian.
- The custodian cannot use a “catch‐all” basis for redacting different types of information. Similar to the above, the custodian cannot redact different types of information throughout a multi‐page document and simply state that the redactions are justified by a single legal basis, unless that legal basis actually applies universally to all the redactions made. If you think the custodian has redacted different types of information from records but just relied on one or more unspecified “catch‐all” legal grounds to justify all redactions, follow the steps at the end of this section.
- Special procedures related to the “deliberative process privilege” exemption under CORA. The “deliberative process privilege” applies to records made by government officials as they make government decisions, and describes records so “candid or personal that public disclosure is likely to stifle honest and frank discussion within the government.” If the deliberative process privilege applies to a record, it may be withheld as confidential. The privilege is meant to be used very, very narrowly. If an agency seeks to withhold records public records covered by CORA based upon the “deliberative process privilege,” the law requires special procedures meant to ensure the privilege is not abused by government officials to withhold otherwise public information. Under CORA, if the privilege is invoked to withhold public documents, the custodian must provide a sworn (under oath) statement describing the grounds for each record withheld.45 If records covered by CORA have been withheld from you on the basis of the “deliberative process privilege” and no sworn statement has been provided, make a written request for that statement in addition to following the steps below.
Make a written request for a sufficient withholding statement. If the custodian has failed to provide you with a written statement that sufficiently explains the legal basis for each record withheld, make a written request for a more detailed explanation. In your request, explain why the custodian’s statement lacks adequate detail. As appropriate, refer to any particular records that were withheld or produced to illustrate your point, and consider attaching examples of the records you are discussing. In some cases, asking the custodian to provide more detail will require the custodian to revisit the records withheld, and may prompt to custodian to produce records that should not have been initially withheld.
5.3 Evaluating Exemptions
After the custodian has responded to your request and identified the legal grounds for each record withheld, you are in a position to review the legal basis that the custodian claims justifies keeping the record secret. Although the application of a legal exemption occasionally requires a complicated legal analysis, it is often easy to get at least a general sense of whether or not the exemption was appropriately used by the custodian. In order to evaluate exemptions, first start by reviewing the following general information about exemptions and how they work.
A record can be exempt from public disclosure under a number of different circumstances. First, the record might be exempt from public disclosure based on a provision in the Colorado open records laws themselves, requiring that the record not be disclosed. Second, a record may be exempted by a law that is not considered part of the Colorado open records laws (a law found in a different part of the state law books that requires that certain records remain confidential). Third, the record might be exempt if the record is subject to a privilege‐‐the legal rule that some documents are presumed to be confidential whether or not there is a specific law stating that they should be confidential. This includes the deliberative process privilege, discussed in Section 5.2 above. Another type of privilege is the attorney‐ client privilege, which protects the private communications between attorneys and clients as confidential in most circumstances. Finally, in some circumstances a record might be withheld where the open records law permits the custodian the discretion to determine whether or not a record’s release would be “contrary to the public interest.”
First, if the custodian relied on a provision in the law for denying your records request, start by reading the legal provision itself. This website offers free access to all Colorado laws: http://www.michie.com/colorado/.
You may also consider consulting the Colorado Open Government Guide. The Colorado Open Government guide is published free online by the Reporter’s Committee for Freedom of the Press. The Colorado Open Government Guide contains detailed information on laws and court rulings that apply to particular categories of records, and is updated periodically to reflect changes in the law. For example, the Colorado Open Government Guide contains sections discussing each of the following categories of records by record type:
- Categories of records where disclosure is required in whole or in part: disclosure statements of public officials; lobbyist disclosure statements; state auditor reports; Division of Labor records; jail records; various county records; court records; records related to professions including chiropractors, dentists, psychologists and real estate; Motor Vehicle Records; election records; voter registration records, and minutes of meetings of state agencies.
- Categories of records where disclosure is exempted in whole or in part: medical, psychological, sociological, and scholastic achievement data on individual persons; personnel files; letters of reference; trade secrets; information about library and museum material contributed by private persons; addresses and telephone numbers of students in public elementary and secondary schools; library records disclosing the identity of a user; records disclosing the addresses, telephone numbers, and personal financial information of past or present users of public utilities and public facilities; records of sexual harassment complaints and investigations; juvenile records; health records; accident reports; agricultural records; arson investigations; banking records; Department of Education records; judicial discipline records, public securities and other financial filings; tax records; welfare and public assistance records, and wills.
- Categories of records where disclosure is committed to the discretion of the agency in whole or in part: Test questions, scoring keys, and other examination data pertaining to administration of licensing examinations, examinations for employment, or academic examinations; details of bona fide research projects being conducted by a state institution; contents of real estate appraisals made for the state or political subdivision concerning acquisition of property for public use until title to the property has passed to the state or political subdivision; market analysis data generated by the Department of Transportation; and photographs filed with, maintained by, or prepared by the Department of Revenue.
At the time of the publication of this guide, the Colorado Open Government Guide was available at
http://www.rcfp.org/ogg/index.php?op=browse&state=CO. An internet search for “Colorado Open Government Guide” should also find the guide in the event that the URL address changes in the future.
If you believe an exemption was wrongfully applied, you should follow the steps in Section 5.4 below. In addition, you may also consider asking for an attorney’s opinion regarding whether or not the exemption was appropriately applied, as discussed further in Section 6.1.
5.4 Strategies for appealing an agency’s decision to withhold records
If you believe that records have been wrongfully withheld, your first step should always be to make a written objection. In some cases, your objections might prompt the custodian to disclose records that were initially withheld. In all circumstances, lodging well‐founded objections ensures that the agency does not become accustomed to easily keeping public information secret as a matter of course. Once you have made those written objections and exhausted efforts to get the records from the custodian yourself, you can consider pursuing other strategies discussed in this section, and/or requesting legal assistance, as discussed in Section 6.0.
Object to wrongfully withheld documents. If you believe an exemption was wrongfully applied, your first step should be to write the custodian and object to the withholding. In your letter, clearly describe your dispute, identify the record in question, and ask that the record be produced. Request that the custodian respond to your letter within 5 business days. Remember to document any occasion where a custodian fails to respond to your correspondence, by adapting the steps outlined in the subsection entitled “Make a written record of non‐responses” on Page 24 of this guide.
Request redaction when entire pages are withheld. When a custodian withholds an entire page of a record, it is possible that only a few words or sentences on that page are actually exempt. In order to obtain access to the non‐exempt portion of the page, you can make a written request to the custodian to redact any exempt information from the record and then provide copies to you with the exempt information blacked out. In some cases, the custodian has an explicit legal duty under Colorado open records laws to redact exempt information and provide you with a copy of the redacted page. Even in cases where a specific legal provision does not require redaction, Colorado’s open records laws and court decisions suggest that redaction is the appropriate tool for balancing the custodian’s need to keep exempt information private, while providing the maximum amount of disclosure of public records.
Contact a member of the media. If you believe the custodian is unreasonably withholding documents and your appeals to the custodian have been unsuccessful, consider investigating whether a news organization might be interested in the issue. A journalist might write a story about your efforts and the government agency withholding the records. Or, if the journalist is interested in the same records you are seeking, it is possible that the journalist or their news organization might try to obtain the records themselves. The following tips might help increase your chances of getting a journalist interested in your story:
- Try to locate a journalist who has already expressed some interest in your issue. If your advance research, described in Section 1.2, uncovered any previous media coverage related to your issue, start by trying to contact the journalist who previously covered the story. If your records request concerns a matter of local importance, consider contacting local media outlets. An online resource for locating local newspapers is discussed in the subsection “What agency is likely to have the records I seek?” on page 2 of this guide. In addition to traditional media outlets like newspapers and television stations, consider contacting bloggers, online publications, and other alternative media.
- If you locate a journalist or blogger you want to contact, explain the issue clearly and concisely to that person. If there has been prior media coverage related to the issue, include references to that coverage. You may want to let the journalist know that you have all the correspondence with the custodian, and offer to provide copies of that correspondence at the journalist’s request. In addition, if your records request relates to an issue or matter of public importance, explain the public interest involved. Requesting public records just out of curiosity is an absolutely appropriate use of Colorado’s open records laws. Those types of requests may not, however, be of interest to a journalist. Therefore, provide an explanation of how your request concerns a subject matter of broad public interest. Alternatively, if you believe the agency’s decision is noteworthy for reasons having to do with government secrecy—for example, the agency has a pattern of thwarting open records requests by charging unreasonable fees or denying requests, regardless of the record involved—be sure to make that context clear to the journalist.
Contact an interested community or advocacy organization. In addition to contacting a journalist, you might also try to contact a local non‐profit or organization that has been involved with your issue. Follow the steps above for contacting journalists—explain your efforts in clear and concise terms, reference any previous media coverage, and offer to provide copies of your correspondence. If you are contacting an organization for the purpose of obtaining legal assistance, then you should follow the more specific steps outlined in Section 6.2 below.
Contact your elected representative. You can also contact your elected representative and see if he or she is willing to help advocate on your behalf to obtain records, or reduce excessive fees. Unlike a journalist or advocacy organization, your elected representative might be willing to intervene even if your request is not necessarily “newsworthy.” Make sure to locate and contact an elected representative that is most directly connected with your request. For example, if you are seeking records from a town or city, contact a city council person or the mayor. If you are seeking records from a county, get in touch with your county commissioner. If your request seeks records from a Colorado state agency or department, contact your state representative or senator. In addition, you can also contact the state representative or senator who sits on a committee with oversight of the department or agency that is the custodian of the record you are seeking. City and county websites should help you find your city council representative and county commissioner. You can use the VoteSmart website, http://www.votesmart.org/, to locate your state senators and representatives. The Colorado General Assembly website, http://www.leg.state.co.us/, contains information on members of legislative committees.
Be your own media! It is easy to start your own blog or website to post the public records you obtain online. For an example of a local Colorado resident who has requested numerous Colorado government records under open records laws and has posted them online, check out: http://www.nataliementen.com/.