2015 COA 84
Colo. Ct. App.2015Background
- In 2012 a citizen complaint prompted Pitkin County code enforcement officer Carrington Brown (part of the county attorney's office) to investigate Shook for constructing without a permit; Shook then obtained the permit and no further enforcement occurred.
- Shook submitted a CORA request for records related to the violation; the custodian produced some materials but withheld the original citizen complaint (which named the complainant) and Brown’s handwritten notes.
- The custodian denied those records under CORA’s investigatory records exception, asserting the records related to an investigation by a prosecuting attorney or were investigatory files compiled for criminal law enforcement purposes.
- Shook sued for declaratory relief and disclosure; the district court sided with the custodian, finding the investigatory-records exception applied.
- The court of appeals reviewed de novo and concluded the record did not show the county attorney was acting as a prosecuting attorney pursuing criminal enforcement (Pitkin County typically uses civil enforcement unless authorized by the Board of County Commissioners).
- The court reversed, holding the investigatory-records exception did not apply and directed the district court to order disclosure and award Shook reasonable costs and attorney fees on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CORA’s investigatory-records exception permits withholding the citizen complaint and notes | Shook: records are public under CORA; exception does not apply because investigation wasn’t for criminal prosecution | Custodian: records are investigatory and relate to an investigation by a prosecuting attorney or were compiled for criminal law enforcement purposes | Reversed: exception does not apply because no evidence the county attorney investigated for criminal prosecution or that files were for criminal law enforcement |
| Whether Shook is entitled to attorney fees and costs | Shook: entitled to fees because she obtained an order requiring inspection | Custodian: (opposed) | Held: On remand court must award reasonable costs and attorney fees to Shook per §24-72-204(5) |
Key Cases Cited
- Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005) (standard of review for CORA questions of law)
- Denver Publishing Co. v. Bd. of County Comm’rs, 121 P.3d 190 (Colo. 2005) (CORA’s broad presumption of disclosure)
- Zubeck v. El Paso County Retirement Plan, 961 P.2d 597 (Colo. App. 1998) (burden on custodian to prove exception; exceptions narrowly construed)
- Land Owners United, LLC v. Waters, 293 P.3d 86 (Colo. App. 2012) (investigatory-files clause applies only to files compiled for criminal law enforcement purposes)
- Marks v. Koch, 284 P.3d 118 (Colo. App. 2012) (statutory award of fees to prevailing CORA requesters)