After repeated denials of public records requests, the Delta County Citizen Report is taking Delta County to court.
A complaint filed by the nonprofit media organization accuses Delta County Administrator Robbie LeValley of violating the Colorado Open Records Act four times. The DCCR in its February suit asks for a show-cause hearing and a finding that Delta County was wrong to deny access to financial records the media nonprofit had sought. The DCCR is also seeking attorney’s fees.
The Delta County attorney could not be reached for comment on the suit. According to the Delta Combined Courts, a response from the defendant is pending. The matter was scheduled for a setting hearing by phone on March 14.
“DCCR has tried every avenue to obtain records we know exist and the county has blocked our requests using several tactics,” JoAnn Kalenak, president of DCCR, alleged in a news release announcing the suit. “After two-plus years, DCCR had no other recourse. The county brought this action on themselves.”
According to the complaint, Kalenak in 2019 filed open records requests for Delta County credit card monthly charge statements for all accounts associated with LeValley between Jan. 1, 2015 and Sept. 1, 2019.
The county supplied records from November 2018 to Sept. 1, 2019, but denied the rest, stating LeValley did not have a credit card in her name prior to then. Kalenak countered that her request had been for all accounts associated with LeValley, not just credit cards issued in her name.
LeValley, the complaint says, was “actively and consistently using” county-issued credit cards prior to November 2018.
On Sept. 12, 2019, Kalenak submitted an expanded Colorado Open Records Act request (CORA), seeking “all Delta County credit and/or debit card charge monthly statements with all accounts associated and/or used” by LeValley from Jan. 1, 2014 — Sept. 1, 2019.
The county in response to that request said there were no further applicable documents and that: “Ms. LeValley did not have a county credit card until late 2018.”
Per the suit, the county had again missed the point of the expanded request, which had sought all credit cards associated and/or used by the administrator. The document reiterates Kalenak’s belief that LeValley was associated with county-issued credit cards and used them prior to November 2018; the records sought therefore exist and should have been provided.
Based on information she received from her first, partially granted CORA request — the financial information associated with LeValley between November 2018 and September 2019 — Kalenak filed an ultimately unsuccessful complaint against LeValley with the Colorado Independent Ethics Commission.
According to past reports in the Delta County Independent, in that complaint, Kalenak alleged LeValley violated rules about conflicts of interest by signing two purchase orders and using her county-issued credit card to buy meat from a company in which her family ranch had a financial interest. The meat was served at the 2019 Delta County Fair.
The ethics commission in 2021 ruled in LeValley’s favor, finding she had not violated statutory standards of conduct and that because her actions were more administrative than discretionary, they did not stray into “official acts.” (Delta County Independent, 2021)
The Independent Ethics Commission issued the ruling in July of 2021. Prior to that, on March 24, 2021, Kalenak had submitted her third CORA request to Delta County, asking “for all credit and/or debit card charge monthly statements with all accounts associated and/or used by” LeValley.
This time, the county acknowledged the records existed, but estimated it would take 187 hours to find and redact the records. Per the recent lawsuit, the county’s estimated fee was a whopping $4,170 — $4,620, of which it demanded half upfront. The plaintiff contends there was no explanation or justification for the “exorbitant” cost.
According to the Colorado Freedom of Information Coalition’s guide on open records/meetings laws, by statute, governments cannot charge more than $33.58 per hour to research, retrieve and compile public records — and the first hour is free. (The DCCR is a member of the Colorado Freedom of Information Coalition.)
The 2021 ethics commission hearing brought additional information to light, the lawsuit goes on to say: Mark Roeber, then a Delta County commissioner, testified LeValley had a county-issued credit card prior to November 2018.
That information prompted Kalenak’s fourth CORA request on Nov. 11, 2021.
This request sought all county credit and/or debit card expense statements for all accounts associated with LeValley or used by LeValley between Oct. 1, 2012 and Nov. 13, 2018.
After seven business days with no response, Kalenak reached out to the county attorney. The suit alleges that at no time did the county inform the DCCR of extenuating circumstances that would justify a delay in providing the records.
According to the Colorado Freedom of Information’s guide, public entities have a “reasonable time” in which to provide responsive records that are not readily available. CORA presumes a reasonable time to be three or fewer working days and records that are readily available should be provided immediately.
Extenuating circumstances can stretch out the response period for an additional seven working days beyond the three-day limit. During the three-day period, the custodian of the record has to supply a written explanation of the extenuating circumstances and these have to effectively match what the law considers extenuating. These mostly concern broadly stated and large requests.
But, the DCCR complaint says, it was only after the county was sent a notice of intent to sue on Dec. 1, 2021, that the county attorney formally responded to the CORA request.
“The formal response admitted that records existed for credit cards associated with and/or used by Ms. LeValley prior to November 2018, despite having twice previously denied such records exist,” DCCR attorney Chris Mochulsky wrote in the complaint.
The county’s response to the latest CORA request quoted a dramatically lower fee for the records: $750. Eighteen days after the fourth CORA request had been made, the DCCR received records and a bill for $99.
Although the cost was much lower, the provided records “were not responsive” to the request and only contained three records of charges LeValley authorized, but did not make over a six-year period, Mochulsky alleged.The records that were provided showed LeValley had requested software purchases from IT, using that department’s credit card.
“For over two years, defendant has exhibited a pattern and practice of conduct of denying records requests, falsely claiming that no responsive records exist and demanding exorbitant costs that bear not relationship to the actual time required to search and retrieve responsive records,” the complaint says.
Mochulsky filed the suit after a review by consulting attorney, media law expert and board president of the Colorado Freedom of Information Coalition Steve Zansberg.
The filing is supported by the National Freedom of Information Coalition’s Knight FOI Fund. The Knight FOI Fund awarded the Delta County Citizens Report a $4,600 grant to offset the costs of filing the suit and, according to the DCCR’s news release, Delta community members have helped fund additional costs.
Jeffrey Roberts, executive director of the Colorado Freedom of Information Coalition, which provided information for this article, is on the board of the National Freedom of Information Coalition and supported the DCCR’s application to the Knight FOI Fund.
The Colorado Freedom of Information Coalition assists members of the Colorado Press Association, which include the Montrose Daily Press.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.