2013 COA 123
Colo. Ct. App.2013Background
- Mountain-Plains (a corporation and its shareholders) requested emails and other records relating to a 2009 stream-improvement project sold to Parker Jordan Metropolitan District (the District). The District’s manager, CliftonLarsonAllen (Clifton), served as custodian of records.
- Plaintiffs made two CORA requests seeking correspondence among the District, the City of Centennial, Urban Drainage Flood Control District, J3 Engineering, and the Army Corps of Engineers; the District produced some documents but refused to produce certain emails and executive-session minutes.
- The District estimated retrieval/review fees of about $16,025 and required a $2,500 deposit and an hourly $25 retrieval charge; plaintiffs refused to pay and filed suit under CORA to compel disclosure without paying the fees and to recover attorneys’ fees.
- The District counterclaimed, arguing the requests were overly broad and that emails held solely by third-party consultants (not in the District’s possession) were not public records; it also asserted privileges could be withheld and that fees could be charged to identify privileged material.
- The trial court ordered the District to produce communications concerning the project that were sent to or by Clifton (including emails from J3 when Clifton possessed them), permitted a $25/hour retrieval fee and deposit, allowed charging plaintiffs for creating a privilege log, allocated costs to plaintiffs, and found no CORA violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether emails in possession of third-party consultants are public records under CORA | All project-related emails held by consultants are within District "custody and control" and must be produced | Emails not received, possessed, or maintained by the District/Clifton are not public records | Emails are public only if received/possessed/maintained by the District (through Clifton); consultant-only emails not in District custody need not be produced |
| Whether the District violated CORA by demanding fees/deposit and delaying response | Demanding large fees and a deposit, and failing to timely respond, violated CORA | Fees and deposits were reasonable given volume and may be required to prevent unpaid costs | No CORA violation; $25/hour retrieval fee and reasonable deposit were permissible; failure to timely produce was excused by permissive deposit practice |
| Whether the $25/hour fee may be charged for identifying and segregating privileged records | Plaintiffs: identification/segregation is not a permissible chargeable activity | District: identifying/segregating privileged records is part of retrieval/research and is chargeable | Custodian may charge a reasonable fee (here $25/hour) for retrieving, researching, and segregating privileged records |
| Whether the District may charge for creating a privilege log | Plaintiffs: producing a privilege log is a ministerial duty and its cost must not be charged to requester | District: compiling a privilege log is ‘‘manipulation of data’’ to generate a record not in the form used by the District and is chargeable under CORA | Creating a privilege log is chargeable as generating a record in a form not used by the political subdivision; $25/hour was reasonable |
Key Cases Cited
- Denver Publ’g Co. v. Bd. of Cnty. Comm’rs, 121 P.3d 190 (Colo. 2005) (framework for construing CORA; e-mail as public record only if used in public functions)
- Black v. Southwestern Water Conservation Dist., 74 P.3d 462 (Colo. App. 2003) (upholding nominal research and retrieval fees and treatment of voluminous requests)
- Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011) (two-part test: who made/maintained the record and why)
- Wick Commc’ns Co. v. Montrose Cnty. Bd. of Cnty. Comm’rs, 81 P.3d 360 (Colo. 2003) (burden on custodian to prove a record is not public)
- Int’l Bhd. of Elec. Workers Local 68 v. Denver Metro Major League Baseball Stadium Dist., 880 P.2d 160 (Colo. App. 1994) (distinguishing contractor-held documents that gave public entity full access)
- DeSantis v. Simon, 209 P.3d 1069 (Colo. 2009) (privilege log defined and claimants bear burden to prove privilege)