Background
This template is for journalists seeking to compel a custodian of a state agency to turn over records requested under CORA. The template provides a general outline for complaints filed in district court, with areas for tailoring the allegations in brackets. Before filing a complaint in district court against the custodian of records, a journalist must first request an inspection from the custodian:
1. Request an inspection of public records from the Official Custodian of Records.
Any person may request inspection of public records from the custodian of the records. Colorado’s policy is that all public records are open for inspection by “any person at reasonable times,” unless excepted by the statute itself or specifically by other law.1 CORA specifically excepts requests that would be contrary to: (1) any state statute; (2) any federal statute or regulation; or (3) any rules promulgated by the supreme court or by the order of any court.2 A custodian may also deny an inspection request if it would be contrary to the public interest.3
Inspection of public records must be done at “reasonable times,” and the custodian may make rules regarding the inspection as are “reasonably necessary” to protect the records and prevent unnecessary interference with the regular duties of the custodian or the custodian’s office.4
If the requested records are “not readily available,” the custodian shall notify the applicant and, if requested by the applicant, set a date and hour within three working days of the request at which time the records will be available for inspection.5 The period may be extended if “extenuating circumstances” exist, but shall not exceed seven working days.6
If the requested records are not in the custody or control of the person to whom the application is made, that person must notify the applicant of this fact. The notification must state in detail: (1) the reason for the absence of the records from the person’s custody or control; (2) the location of the records; and (3) what person has custody or control of the records.7
If the custodian denies access to public records, the applicant may request a written statement of the grounds for the denial.8 The written statement must cite the basis for the denial.
2. File a complaint with the state district court.
If an application for the inspection of public records is denied, the applicant may also file a complaint with the state district court in the district where the records are located for an order directing the custodian to show cause why the custodian should not permit the inspection of the records.9 The proper defendant is the custodian who denied the request for inspection,10 and a hearing on the application shall be held at “the earliest practical time.”11 The custodian bears the burden of showing that records are exempt from inspection,12 and unless the court finds that the denial of inspection was proper, it shall order the custodian to permit the inspection requested.13
The court may award court costs and reasonable attorney fees to the applicant, but to be entitled to attorney fees, the requesting party must notify the custodian who declined access to records of the party’s intent to file suit at least 3 days prior to filing.14
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1 C.R.S. § 24-72-201. CORA creates a general presumption in favor of public access to government documents, and in the absence of a specific statute permitting the withholding of information, a public official has no authority to deny any person access to public records. See Daniels v. City of Commerce City, 988 P.2d 648, 650-51 (Colo. App. 1999) (citing Denver Publ’g Co. v. Dreyfus, 520 P.2d 104 (Colo. 1974)); see also Denver Post Corp. v. Univ. of Colorado, 739 P.2d 874, 877 (Colo. App. 1987).
2 See C.R.S. § 24-72-204(1).
3 Id. § 24-72-204(2)(a); see also id. § 24-72-204(3) (other exceptions).
4 Id. § 24-72-203(1)(a).
5 Id. § 24-72-203(3)(a).
6 See id. § 24-72-203(3)(b) (listing extenuating circumstances).
7 Id. § 24-72-203(2)(a).
8 Id. § 24-72-204(4).
9 Id. § 24-72-204(5).
10 See id. § 24-72-203(5) (stating applicant may apply for order directing custodian to show cause why he should not permit inspection); see also Pope v. Town of Georgetown, 648 P.2d 672, 673 (Colo. App. 1982) (noting plaintiff failed to follow procedure in section 24-72- 204(5) because he did not sue custodian).
11 C.R.S. § 24-72-204(5).
12 See Denver Publ’g Co., 520 P.2d at 108.
13 C.R.S. § 24-72-204(5).
14 C.R.S. § 24-72-204(5).