Montrose County commissioners on Monday declined to delay a new public records policy, adopting it over the objections of one citizen, who decried the policy as “rubbish” and a barrier to access.
The Colorado Open Records Act requires public access to most governmental records. It and case law also allow for reasonable fees to be assessed of those requesting the records. Courts and several governmental agencies charge fees for records and research.
The problem from the county’s perspective: Requests for vast numbers of records that tie up staff time, thereby costing taxpayers money, plus requests for information that require the county to research, analyze and actually create from that information a record that did not previously exist.
Monday’s resolution allows the county to charge $20 an hour to compensate for excess staff time spent fulfilling more in-depth CORA requests. People requesting records are to be informed in advance of how much time might be entailed in meeting their request.
The policy does not apply to the Montrose County Sheriff’s Office, which is subject to laws pertaining to criminal justice records. Other county departments headed by elected officials, such as the clerk, have their own fee schedules.
Multiple requests from the same individual result in an “aggregated charge,” County Manager Jesse Smith said.
“I am unalterably opposed to this,” said county resident Roger Brown, who makes a fair number of public records requests, as does the Daily Press. He asked the county to at a minimum delay enacting the policy until a public hearing could be held.
Commissioner Gary Ellis later told the Daily Press the policy was not aimed at Brown specifically, but to address a number of time-consuming requests the county has received.
“It wasn’t really due to one individual, just multiple situations that have occurred,” he said.
Brown told commissioners that the resolution enacting the new policy is anything but “effective and responsive government,” as it was described on Monday’s agenda. The costs can put out of reach the very records a citizen might need to hold his or her government accountable, he indicated.
“This is just rubbish,” Brown said, also opining that Smith had, either through his own agency or at the behest of others, “stonewalled” records requests.
Smith later hotly disputed the accusation. “I have protected the county through the statutes,” he said.
Resident Wally Smith (no relation) also stepped forward to say: “I’ve never been stonewalled.”
By the policy, the county is charging what it wants, whenever it wants to, Brown said. “You are consequently putting this outside the reach of the common citizen,” he said.
There is no intention not to fulfill CORA requests, said County Attorney Bob Hill. The new policy does not limit CORA records, but instead seeks a reasonable fee for the time spent preparing documents to meet CORA requests, he and commissioners said.
There have been abuses of CORA requests, Hill said, pointing to ongoing airport litigation, and later giving examples of such nebulous requests as “all” emails having anything to do with county business over a number of years.
“CORA has been used as a club against the county. I have seen CORA abused,” Hill said.
Montrose County is not obligated to create new documents in response to interrogatory CORA requests, he explained.
Ellis asked whether the intent of the new policy had been to cover that gray area when requests are made for which documents do not exist, and when fulfilling those requests ties up staff time.
“We’re not changing the (open records) statute,” Jesse Smith said. Instead, the county is putting a monetary value on meeting requests.
Her office deals with public records requests every day, said Fran Tipton Long, Montrose County clerk. Frequently, her employees offer more help than is required under CORA, and she does charge to help recoup costs for staff time.
“You need to be conscientious of all citizens, not just the one” who is making the request, she said.
Aviation Director Lloyd Arnold said the policy actually strengthens CORA, in that it allows for the creation of documents that fall outside the scope of the open records law.
But the $20 hourly fee is a deterrent to CORA requests, Brown maintained. Some degree of retrieval and analysis occurs in meeting every CORA request, he said; therefore, including costs for those services is absurd.
“It’s all arbitrary. This is very ill-advised. You’re on a slippery slope. ... You can’t create a policy and procedure that locks people out,” he said.
“Everything is available,” Commissioner David White said, also mentioning the many records the county makes available online at www.montrosecounty.net.
“Everything is not available and you know that,” Brown retorted, and Commissioner Ron Henderson then called Brown “arbitrary and capricious.”
Hill reiterated that the policy does not change CORA, but Brown said the policy can be used to obscure public record.
“What you’re doing is reducing transparency,” he said.