Members of the Colorado Supreme Court grappled on Tuesday with two competing principles: honoring public access to government records, on the one hand, while preventing litigants from deluging public bodies with open records requests at the same time they are suing them.
Previously, the state’s second-highest court ruled that plaintiffs are not forbidden from using the Colorado Open Records Act (CORA) to obtain materials from government defendants in lieu of using the formal process for the discovery of evidence.
During oral arguments to the Supreme Court, some justices seemed reluctant to find that a litigant’s access to CORA should be shut off whenever they happen to be suing the government.
“They moment you file litigation, you lose the rights every other person has?” asked Justice Melissa Hart.
Other justices, though, worried it would be unfair to require governments to fulfill open records requests in addition to producing the evidence through the normal court procedure.
“Government entities who are sued are going to end up at a disadvantage in every case because not only can the plaintiff get discovery, but they also can get additional information through CORA requests that are related specifically to the litigation,” said Justice Carlos A. Samour Jr. “How is that fair?”
From left, Colorado Supreme Court Justices William W. Hood III, Melissa Hart and Maria E. Berkenkotter listen to an argument during a Courts in the Community session held at Pine Creek High School in Colorado Springs on Thursday, Nov. 17, 2022. (The Gazette, Parker Seibold)
Parker Seibold
In the case before the Supreme Court, attorney Matt Roane sued the Archuleta County Board of County Commissioners in October 2020, arguing it violated the requirements of Colorado’s open meetings law. To aid his case, he submitted a CORA request to the county clerk in December 2020 asking for a recording of a board meeting.
In response, the county wrote back to say the request was prohibited because Roane was effectively using CORA to circumvent the rules on the discovery of evidence. Roane then filed a lawsuit seeking to force disclosure of the meeting recording. A trial judge sided with Roane, prompting an appeal.
In December 2022, a three-judge Court of Appeals panel ruled Roane was allowed to get the recording through a CORA request, notwithstanding his status as a civil litigant. Judge Lino S. Lipinsky de Orlov observed that if clerk Kristy Archuleta was concerned about potential unfairness to the county, “her remedy is a petition to the General Assembly to amend CORA.”
“We further note that Archuleta’s argument would lead to the absurd situation in which a litigant seeking documents from a party-opponent under CORA would need to dismiss his or her pending action against the public entity,” continued Lipinsky, “submit a CORA request, and then refile the action after obtaining the requested documents.”
During arguments to the Supreme Court, Archuleta County Attorney Todd A. Weaver acknowledged Roane was not using his open records request as a means of evading limitations on the discovery of evidence. He also admitted that had Roane asked for the recording in the course of the litigation, Weaver would have turned it over.
“What specific rule of civil procedure precluded this specific request? I’m not seeing anything,” pressed Chief Justice Monica M. Márquez.
“I’m curious about the limits of the rule that you’re asking us to adopt,” added Justice Maria E. Berkenkotter, binging up a hypothetical example of a plaintiff asking his friends or family members to submit an open records request for him. “In your view, could the trial court prohibit that?”
Justice Monica M. Márquez speaks during oral arguments at the Colorado Supreme Court’s “Courts in the Community” event on May 9, 2024 at Central High School in Pueblo. (Photo by Jerilee Bennett, The Gazette)
Colorado Counties, Inc., which represents 62 of Colorado’s 64 counties, also weighed in on behalf of Archuleta to argue the Supreme Court should permit trial judges to manage litigants’ use of CORA at their discretion.
“As soon as you decide to initiate litigation and you subject yourself to the jurisdiction of the court,” said attorney Andrew D. Ringel, “you subject yourself to the rules.”
“You don’t give up your statutory rights, other rights that you have as a citizen,” countered Justice Richard L. Gabriel.
Roane’s attorney argued that a plaintiff should not be cut off from utilizing the open records law because they happen to be suing the government. Timothy R. Macdonald of the ACLU of Colorado, which also submitted a separate supportive brief, said the Supreme Court has previously held the purpose behind a CORA request is irrelevant.
“According to the legislature, these are our public records,” he said. “They’re not a private company. They are not dealing with their own personal documents or their own trade secrets.”
And yet, responded Márquez, using CORA to obtain evidence would mean the civil rules limiting discovery do not apply when the government is the defendant.
“How is that truly a level playing field?” she wondered.
The case is Archuleta v. Roane.
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Publish date : 2024-09-25 02:00:00
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