On January 2, 2024, we filed an amicus brief on behalf of the ACLU of Colorado and the Colorado Freedom of Information Coalition urging the Colorado Supreme Court to hold that a person’s ability to obtain public records under the Colorado Open Records Act (CORA) is independent from and not constrained by discovery in civil litigation.
In 2020, Matt Roane, a resident of Archuleta County, sued the Archuleta County Board of County Commissioners for violations of Colorado’s Open Meetings Law. Roane subsequently submitted a CORA request to the Clerk and Recorder of Archuleta County seeking a recording of a meeting of the Archuleta County Board of County Commissioners. The Clerk, Kristy Archuleta, denied Roane’s request, claiming that because Roane was in litigation against the County, he could not obtain records from it through CORA requests—he had to rely exclusively on the litigation discovery process. Roane then filed a separate lawsuit against Archuleta seeking access to the recording under CORA.
The district court and court of appeals both correctly held that Roane’s status as a litigant against the County did not deprive him of the ability to obtain records under CORA. While Archuleta quoted the Colorado Supreme Court saying that CORA was not intended to “supplant discovery practice in civil litigation,” in context, the Court was merely explaining that materials exempt from disclosure under CORA are not necessarily exempt from discovery in civil litigation. The Colorado Supreme Court has never said that CORA is unavailable to a person suing the government—and our amicus brief explains why it shouldn’t say that now.
CORA itself states that any person can inspect public records at reasonable times. Because public records belong to the public, the government generally must allow the public to access them. CORA contains certain specific exceptions to its disclosure requirements—for example, where disclosure of a public record would be contrary to the public interest—but none of the exceptions are for public records that could also be obtained through discovery in civil litigation. Where a person obtains public records under CORA that she could have instead obtained through litigation discovery, CORA does not permit her to recover fees and costs—but that is the only limitation. Like any other member of the public, a person in litigation against the government can still submit CORA requests for public records.
Because the court of appeals left open the possibility that trial management orders and discovery limits imposed in civil litigation could restrict a litigant’s access to CORA, our amicus brief focuses on the reasons that CORA requests and litigation discovery are—and should be treated as—entirely distinct processes. Discovery is about obtaining private information relevant to a specific lawsuit; CORA is about allowing the public to access our own public records that the government holds in trust for us. A person is entitled to access public records under CORA regardless of their purpose for requesting the information because CORA is meant to promote government transparency and allow the public to scrutinize government practices. CORA could not fulfil those critical purposes if it were available only to those who refrain from suing the government.
We hope the Colorado Supreme Court will reaffirm that there is no ‘litigation exception’ to CORA, and close the door to government actors attempting to restrict the availability of CORA to anyone who sues them.
"ACLU, CFOIC brief: Colorado Supreme Court should reaffirm a litigant’s right to use CORA", Colorado Freedom of Information Coalition Blog, January 3, 2024