Reno, Chafee County Clerk and Recorder v. Marks, 349 P.3d 248

In October 2011 Marilyn Marks requested to inspect voted paper ballots from Chaffee County’s 2010 general election under the Colorado Open Records Act (CORA).
The County Clerk (Reno) believed disclosure of voted ballots was prohibited or could risk identifying voters and filed in district court under § 24-72-204(6)(a) seeking an order restricting or prohibiting disclosure.
While the clerk’s petition was pending, the Secretary of State issued guidance and the legislature enacted § 24-72-205.5 making voted ballots subject to CORA with privacy protections; the clerk then produced a ballot to Marks.
The only remaining dispute was whether Marks, as the records requestor who ultimately obtained access, was entitled to recover court costs and reasonable attorney fees under CORA’s fee-shifting provision (§ 24-72-204(5)).
The district court denied fees, finding subsection (6)(a) did not authorize fee awards when a custodian seeks to restrict disclosure and alternatively finding the clerk’s denial of inspection was proper. The court of appeals reversed, ordering fees for Marks. The Supreme Court granted certiorari.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CORA § 24-72-204(5)’s fee‑shifting applies when a custodian brings an action under § 24-72-204(6)(a) seeking to restrict or prohibit disclosure	Marks: § 24-72-204(5) applies to any prevailing requestor regardless who files; (6)(a)’s safe‑harbor implies (5) governs otherwise	Reno: (6)(a) lacks explicit fee language; American Rule means no fee award for custodian‑initiated actions unless statute clearly so provides	(Yes) The court held (5)’s fee‑shifting applies to custodian actions under (6)(a) except where (6)(a)’s safe harbor applies; the safe harbor language demonstrates (5) is imported into (6)(a)
Whether Marks was entitled to fees on these facts	Marks: She prevailed because she obtained access and clerk did not secure an order restricting disclosure	Reno: Even if (5) applies generally, district court found the clerk’s denial was proper at the time she filed, so fees are not warranted	(No) The court affirmed that the district court’s factual findings show the clerk’s denial was proper when filed; therefore Marks is not entitled to fees on these facts

Benefield v. Colorado Republican Party, 337 P.3d 1199 (Colo. App. 2011) (interpreting CORA fee‑shifting and prevailing applicant concept)
Benefield v. Colorado Republican Party (Benefield II), 329 P.3d 262 (Colo. 2014) (holding subsection (5) mandates fees for a prevailing applicant unless denial was proper)
Marks v. Koch, 284 P.3d 118 (Colo. App. 2011) (addressed inspection of digital images of ballots and limits of voter‑identifying information)
Bernhard v. Farmers Ins. Exch., 915 P.2d 1285 (Colo. 1996) (restating the American Rule on attorney fees)