Using the Colorado Open Records Act (CORA)

This guide will walk you through the steps you should consider when making an open records act request, and offers practical tips based on the ACLU’s experience in filing hundreds of requests.

Regardless of the reason that you are seeking information from a government agency in Colorado, this guide will help you to understand how to most effectively utilize Colorado’s open records laws in order to obtain the records you are seeking. You do not have to have any special training, education or prior experience to understand and effectively use Colorado’s open records laws.

 Section 1 discusses preliminary research you should undertake before you even put pen to paper. Section 2 provides practical guidelines for drafting your request. Section 3 discusses the fees you might be charged by the government agency for producing and copying the records you want, and some common‐sense strategies for avoiding or minimizing those charges. Section 4 discusses the legal timeframes in which the government agency must respond after you have submitted your request. Section 5 discusses steps for reviewing what is produced, what do to if an agency refuses to disclose the records or information that you have requested, and offers possible alternatives that might allow you to get the information you want without having to file a lawsuit. In those cases where a government agency refuses to budge even after you’ve exhausted all other efforts, Section 6 of this guide discusses issues to consider when seeking legal advice and assistance.

Finally, in the Conclusion to this guide, we offer some thoughts and suggestions on how you can continue to support, defend and expand transparency and accountability in Colorado through our open records laws. We hope you find the guide useful, and if so, that you will consider getting involved in some of the broader efforts discussed in the Conclusion.
 

Public access to information in American democracy
When the final draft of the Declaration of Independence emerged in Philadelphia on July 4, 1776, after more than 80 revisions and edits, the grievance quoted above was almost at the very top—fourth on a long list of over two dozen complaints the drafters “submitted to a candid world” to prove King George’s “absolute Tyranny.” 

What were the drafters of the Declaration talking about, and why was this complaint so high on the list?

In modern terms, the drafters were concerned with transparency, the fundamental principle that openness in government affairs is critical to a participatory democracy and for holding government officials accountable when they do not act in the public’s best interest. In colonial times, the governors of Virginia and Massachusetts had moved legislative assemblies to remote locations at the last minute, far away from public records vital to informed decision‐making. The King and the governors said the measures were necessary for “public safety”—a familiar refrain still used to justify unwarranted government secrecy today—but the drafters of the Declaration weren’t buying it. They complained that the King’s actions were taken “for the sole purpose of fatiguing them into compliance with his measures.” In other words, drafters were putting the world on notice that the King was subverting democratic processes by limiting access to information and stifling well‐informed democratic input.

Although the drafters of the Declaration recognized that transparency in government decision‐making was fundamental to a democratic society, they unfortunately did little to legally protect that right 13 years later when drafting the constitution. Consequently, for the first 190 years of our country’s history, the public’s ability to access records was governed only by court decisions that discussed vague “common law” rights to public records. Those decisions gave government officials broad discretion to deny requests for records. Following World War II, federal agencies clamped down even more tightly on the public’s access to information in the era of the Cold War, McCarthyism, and J. Edgar Hoover’s FBI. 

Beginning in the late 1940s, journalists took the lead in a 20‐year campaign to enshrine and expand the public’s legal right to access to government records. As a result of these efforts, in 1966 Congress passed the Freedom of Information Act (“FOIA”). After FOIA, all information held by the federal government was presumed to be public, unless it fell into a specific exemption which permitted information to be withheld. Although FOIA only applied to information held by federal government agencies, its passage motivated similar changes in Colorado’s state laws.

Transparency comes to Colorado

"...excessive government secrecy, especially when imposed arbitrarily by elected or administrative officials, can endanger the freedom of speech concept embodied in the first amendment and may threaten democracy generally."
–Colorado Committee on Open Public Records, 1967

Just like the public’s access to records held by the United States government, for much of Colorado’s history there was no specific law governing whether the public had a right to access information held by Colorado state, county, or city government agencies. Whether information could be obtained by the public was generally at the sole discretion of government officials. After the passage of the federal FOIA law, however, Colorado’s legislature took similar action to create broad access to public records in Colorado.

Colorado’s open records law were inspired by the federal FOIA and were passed in 1969, just three years after FOIA was enacted. Like FOIA, under the Colorado’s Open Records Act, all records are presumed to be available to the public unless specifically exempted from disclosure by law. These laws underwent significant amendments in 1974 and 1977.

In their modern form, Colorado’s open records laws are really composed of two different laws: the Colorado Open Records Act (“CORA”) and the Colorado Criminal Justice Records Act (“CCJRA”). The simplest way of understanding the relationship between the two laws is as follows: the CCJRA governs the disclosure of “criminal justice records—those records made or kept by law enforcement agencies like police departments, county sheriffs, and criminal courts. CORA governs every other type of record. The application of these laws and the difference between them is explored in more depth later in this guide.

Colorado’s open record laws permit “any person” to request information from Colorado government agencies. Under Colorado’s open records laws, the phrase “any person” really does mean anyone—the requestor can be a journalist, organization, community organizer, lawyer, or just a curious member of the public. Colorado’s open records laws apply to every branch of government—legislative, executive, and judicial—and at every level of governance including towns, cities, counties, and state agencies. Even nongovernmental bodies can be subject to Colorado’s open records law if the entity receives public funding or includes a member who is a government official. On paper, Colorado’s public records laws promise the public the ability to access a wide scope of information regarding Colorado’s government affairs. In reality, however, the effectiveness of Colorado’s open records acts in ensuring government transparency and accountability is wholly dependent on the public’s vigorous use of its right to obtain public records under these laws.

The importance of Colorado’s open records laws
"...the concentration of power and the subjugation of individuals will increase amongst democratic nations ... in the same proportion as their ignorance."
-Alexis de Tocqueville, Democracy in America, 1840

The records made, kept and maintained by Colorado’s government agencies are indeed our records, in the very literal sense of that word. All people who work for Colorado’s city, county or state governments, whether they have been elected, appointed or hired, have been granted their power and authority by Colorado voters. Every dollar that Colorado government officials make or spend comes from taxes collected from Colorado residents. Each time a government official drafts a policy, signs a contract, or sends an official letter or email, they are doing so in discharge of duties they are supposed to be taking on behalf of the best interest of Coloradoans. Each time a record custodian copies a piece of paper in response to an open records act request, the copier, toner, and piece of paper was paid for by public tax dollars.

These public records are fundamental to understanding official policies, examining government decision‐making processes, exposing waste and fraud, and uncovering government wrongdoing. These records are equally useful to student researching a paper, a blogger investigating government misconduct, an advocacy organization trying to influence public policy, or a person who is merely curious about how his or her government officials are fulfilling their duties and responsibilities. Public records reveal the raw data and first‐hand account of events, before the information is edited, spun or tweaked for official presentation to the public by the government or news media. In this way, government records are of singular importance to our democracy.

Traditionally, journalists have been the primary users of open records laws—submitting requests, haggling with agencies over insufficient responses, calling the public’s attention to unwarranted government secrecy, and tediously reviewing and combing through documents to look for a clue or “smoking gun” hidden in the records. With newspapers shuttering daily and an overall decline in investigative journalism, however, it is now more important than ever that individuals and organizations in Colorado understand and utilize our open records laws to obtain and review public records concerning the issues and matters important to them.

You do not have to have any special training, education or prior experience to understand and effectively use Colorado’s open records laws. Making an open records request is an easy way for organizations, community groups, and any curious member of the public to learn more about how their government is working and ensure that transparency and accountability remain fundamental principles of our democracy. Consider the following hypothetical situations:

• SITUATION 1: A neighborhood association becomes concerned after the city council awards a contract to a developer to construct a new city building in their neighborhood. The contract is awarded in a closed door process, and no information about the bidding process or the amount or the terms of the contract seems to be publicly available.
• SITUATION 2: A college student working on a paper wants to gather data about deaths caused by well water contamination in a Colorado county over the last 50 years.
• SITUATION 3: A young person of color feels that he was stopped and racially harassed by a police officer. The person becomes even more concerned after learning that other people in his neighborhood have had similar confrontations with this officer. The young person files a complaint with the police, and the police department conducts an investigation. The department finds that the officer did not engage in racial harassment or violate any department policies, and the department does not disclose any information about the reason for their decision, how the investigation was conducted, or whether the officer has any history of racial profiling complaints.
• SITUATION 4: A high school student journalist becomes concerned after hearing complaints from other students that a newly hired counselor seems woefully inexperienced and has inappropriately disclosed confidential information about students to other students and staff.

Can you think of any way in which public records might help the persons in these situations learn more about how their public officials are discharging their duties? Before reading any further, try to think about some records you might request in each situation, and how you might use any records you obtained. Now consider the following possible requests and results in each case:

• SITUATION 1: Using Colorado open records laws, the neighborhood association requests a copy of the contract from the city. In addition, the association requests copies of any emails between the developer and the city council referring to the contract, and any internal city policies that govern the contract award process. RESULT: Emails disclosed in response to the neighborhood association’s open records request show that one particular city council member was responsible for keeping the bidding process closed. An internal city guideline suggests that the councilperson’s actions may have violated city policy. When the neighborhood association gives the emails to a local reporter, the newspaper runs an article. The article starts an internal inquiry by the city, which confirms that the city council member directed the contract to a close personal friend at a contract price far above the market rate, and that the city council person violated internal city guidelines.
• SITUATION 2: Using Colorado open records laws, the student requests copies of coroner’s reports from the county. The student also investigates whether the county health department tracks statistics relevant to her research, and finds some of that public data is already available online. RESULT: The student’s review of coroner’s reports finds that deaths from well water contamination are far more common than previously thought. The student’s findings are published in a paper that is used by an environmental advocacy group to convince county commissioners to adopt measures to monitor and remedy the contamination.
• SITUATION 3: The young person who filed the police complaint requests a copy of the police department’s internal investigation file under Colorado’s open records laws. The young person also requests copies of internal policies the department uses to prevent officers from engaging in racial harassment and profiling. RESULT: The police department refuses to disclose some pages from the internal investigation file, but the young person obtains portions of the file showing that police investigators never even interviewed independent witnesses who saw the racial harassment, and asked leading questions when interviewing the officer. The file also reveals that the officer has a long history of racial profiling complaints. The young person also obtains the department’s policy on racial profiling, which is bare‐bones and out‐of‐date. The complainant contacts local religious leaders and community organizations, who work to convince the police chief to conduct additional racial profiling training for her officers, and to improve the department’s racial profiling policy and internal investigative procedures.
• SITUATION 4: Under Colorado open records laws, the student journalist requests copies of the job applications of everyone who applied for the counselor position. RESULT: The student journalist obtains copies of the job applications and finds that the person hired to fill the counselor position was the least qualified of 10 candidates for the position, and had no previous experience as a counselor. The student journalist then makes another open records act request for the salary information of all the counselors from her school, and obtains the counselor’s criminal arrest history. The student finds that her school was paying a much higher salary to the inexperienced counselor compared to other counselors at her school, and that the inexperienced counselor pled guilty to theft before being hired. The student journalist writes an article reporting her research in the school newspaper, which prompts someone to come forward and disclose that the counselor is the son of a district administrator.

The above hypothetical situations help demonstrate some of the many ways in which Colorado open records laws can be used to ensure accountability and transparency. These examples, however, represent only a fraction of the records and information available from Colorado’s government agencies and the potential ways in which that information can inform and strengthen our democracy. While this guide cannot tell you every type of public record that is available or its value to an informed Colorado citizenry, it will help you research, draft, and follow‐through with your open records act requests.

Using the ACLU Guide to Colorado Open Records Laws
Regardless of the reason that you are seeking information from a government agency in Colorado, this guide will help you to understand how to most effectively utilize Colorado’s open records laws in order to obtain the records you are seeking.

This guide will walk you through the steps you should consider when making an open records act request, and offers practical tips based on the ACLU’s experience in filing hundreds of requests. Section 1 discusses preliminary research you should undertake before you even put pen to paper. Section 2 provides practical guidelines for drafting your request. Section 3 discusses the fees you might be charged by the government agency for producing and copying the records you want, and some common‐sense strategies for avoiding or minimizing those charges. Section 4 discusses the legal timeframes in which the government agency must respond after you have submitted your request. Section 5 discusses steps for reviewing what is produced, what do to if an agency refuses to disclose the records or information that you have requested, and offers possible alternatives that might allow you to get the information you want without having to file a lawsuit. In those cases where a government agency refuses to budge even after you’ve exhausted all other efforts, Section 6 of this guide discusses issues to consider when seeking legal advice and assistance.

Finally, in the Conclusion to this guide, we offer some thoughts and suggestions on how you can continue to support, defend and expand transparency and accountability in Colorado through our open records laws. We hope you find the guide useful, and if so, that you will consider getting involved in some of the broader efforts discussed in the Conclusion.

Happy hunting.
Taylor Pendergrass

Staff Attorney, ACLU of Colorado

For a PDF version, click here.