Colorado Supreme Court justices hear feedback on open records rules
Steamboat Springs — The Colorado Supreme Court on Thursday heard both praise and criticism for new rules being considered to govern which judicial system records will be made available to the public.
In the 2012 Gleason v. Judicial Watch case, the Colorado Court of Appeals ruled the judicial branch is not subject to the Colorado Open Records Act, or CORA. This prompted the Colorado Supreme Court to draft its own rules, a process a subcommittee has been working on for the past year.
Journalists and members of the public have faced roadblocks since the Court of Appeals ruled judicial agencies’ administrative records are not subject to CORA. For example, requests have been denied related to the amount of tax dollars spent by the Public Defender’s Office to defend Aurora theater shooter James Holmes. A journalist was also denied access to the budget of the Office of Judicial Performance Evaluation, which facilitates performance evaluations for judges.
On Thursday, the Colorado Supreme Court held a public hearing to listen to comments from members of the public. Six people were scheduled to speak for 10 minutes each.
Fifth Judicial District Chief Judge Mark Thompson spoke. He sat on the 14-member subcommittee that developed the proposed rule, and he briefed the justices on the process of its creation. He said the CORA was used as an example when creating the rule, and the subcommittee believed documents should only be withheld from the public if doing so was in the public’s interest or in the interest of privacy.
Colorado state Rep. Polly Lawrence, from District 39, representing Teller County and parts of Douglas County, expressed concerns about the rule.
She said CORA was a critical tool in fulfilling the duty of government transparency, and no branch of government should be held to a different standard.
“It’s concerning that a citizen can request how dollars are being spent and be denied by the judicial branch,” Lawrence said.
She said the proposed rules do not reflect that CORA was used as a baseline, and it gives the judicial branch too much discretion in deciding what records are released.
“I want to encourage you to take into account the public concern that the judicial branch is not being held to the same standards,” Lawrence said. “We owe this to the people of Colorado. An efficient government is a transparent government.”
Peter Coulter, publisher of coloradojudicialperformancecommission.com, spoke of having been denied records. He said he believes the rules have been orchestrated to make the court less transparent.
“Me trying to get that information is the point here, and it will be impossible if you implement these new rules,” Coulter said.
Colorado attorney Chris Forsyth was critical of the judicial branch, because, he said, it was making rules that apply to itself and the documents it would release. He said the rule-making process reeked of impropriety.
“This proposed rule does not inspire the trust and confidence of the people,” Forsyth said. “It works directly against it.”
Media law attorney and Colorado Freedom of Information Coalition president Steve Zansberg spoke on behalf of 35 television stations, 207 radio stations and more than 150 newspapers, including Steamboat Today.
Zansberg said the CORA has withstood the test of time, and the 4,000 employees in the judicial system should be held to the same standard as other public officials and employees.
“I respectfully urge the court to amend the proposed rule to make it essentially identical to CORA,” Zansberg said.
The justices lastly heard from Frances Smylie Brown, with the Office of the State Public Defender. She has practiced law for more than 30 years in Colorado.
She said it was not “shocking” that the justices were considering implementing rules that would dictate what it was going to do with its own records.
“At this point, there is simply no good reason for this court not to adopt this rule,” Brown said.
At the end of public comment, the justices took no action.
After the hearing, Rob McCallum, public information officer for the Office of the State Court Administrator, said there was no timeframe for how the justices will proceed.
“The court could go back and do any number of things,” McCallum said.
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Wednesday, Jan. 19, 2022