Although Jefferson County Public Schools Board of Education members continue to promise transparency, many employees in the district seem to have missed the memo.
Recent open records requests from Complete Colorado have been met with obstruction, possible illegally inflated charges, and timing issues that all could be violations of the Colorado Open Records Act (CORA).
Colorado laws state that records must be available for public view within three working days of the time the request is made, unless there are extenuating circumstances that require additional time. In that case, they must be available in seven days. It also caps the amount of charges a government entity can assess for filling the request at $30 per hour, with the first hour free.
None of Complete Colorado’s requests fit the extenuating circumstances definition, which includes such reasons as large amounts of documents, broad requests, or no resources to complete the request. And all of them were met with the possibility of an additional charge of $78 per hour for legal review — above and beyond charges that would have already been assessed at $30 per hour for retrieving the documents.
In one particular instance, a member of the JeffCo Communications team waited until the end of the third day to contact Complete Colorado with charge estimates—despite repeated attempts to clarify the law, including sending her the statue verbatim.
The same district employee also contends the district has an additional 72 hours to fill the request after the charges are paid.
JeffCo appears to be in the minority with its policy. By comparison, the Jefferson County Court House filled one CORA request within an hour. A second CORA request at the County Court House was filled in two days. Each of those requests had a much larger scope than the requests cited as examples above.
Greeley-Evans School District 6 director of communications Theresa Myers filled a CORA request recently within two hours, and a follow up that—again—was much more extensive than any of JeffCo’s within 36 hours.
JeffCo also charges fees that are above state limits recently put in place after the 2014 session of the Colorado General Assembly. A $78 charge was issued for legal services to “ensure confidential and personal records are not inadvertently disclosed,” the employee said.
According to Jeffrey Roberts from the Colorado Freedom of Information Coalition, the law is clear: hourly charges to fulfill public records requests shall not exceed $30 per hour, including legal work. In fact, at a recent Colorado Press Association conference on exploring the ambiguities in Colorado’s Open Records Act, Kendra Carberry, a Denver-based attorney who specializes in local government law, including public records law, agreed.
“I wish I could say that the rate is higher, but it’s still $30 an hour – capped at $30 an hour,” said Carberry, who represents dozens of municipalities and special districts across the state. “We are not even going to come close to recovering the $150 an hour the attorney is charging us, but at least we can recover the $30 an hour.”
Carberry wasn’t alone in her assessment. Geoff Wilson, the general counsel for the Colorado Municipal League, an organization that provides services and resources to municipal officials to help manage their governments, cited a legal case predating the 2014 change.
In the 2013 case Mountain Plains Investment v. Parker-Jordan Metropolitan District, Wilson said “the claim was you couldn’t charge for reviewing documents for whether they were privileged under attorney/client privilege. And the court said yeah we can, but I agree with…the cap (at $30).”
JeffCo internal legal counsel Craig Hess, however, interprets that same court case differently, saying the charge is for logging documents found to be privileged. Therefore, he stands behind his decision. He said the Colorado Court of Appeals ruling in the 2013 Mountain Plains Investment case gives JeffCo the authority.
JeffCo Board of Education legal counsel Brad Miller erred on the side of the majority. “I am not aware of any exclusion to the $30,” he said. “Districts where I have served (as internal council) have taken the position it’s $30.”
Most concerning, perhaps, is that JeffCo continues to obstruct the process by subjectively interpreting the requests to deny access to the information.
In a CORA filed seeking documents from Arvada West High School, the original response from JeffCo quoted a cost of $30 to retrieve the emails. A week later, after the payment was made based on what the district said would take two hours to retrieve, Complete Colorado was told that no emails matched the query. A request for refund has been ignored.
Another request for emails between JeffCo board members and Amy Weber, the district’s human resources director, had to be filed twice and separated into six separate requests because of one district employee’s “interpretation.”
Yet, despite supplying JeffCo with ongoing examples of its failure to comply, director of communications Lisa Pinto defends the district’s policy.
“JeffCo Schools complies thoroughly with the requirements mandated by Colorado’s Open Records Act,” Pinto said. “We promptly and diligently respond to all queries. Our department handles multiple requests daily, and we seek to respond to each and every one within the statutory timeline.”