Colorado Gov. John Hickenlooper signed Senate Bill 17-040 into law on June 1, 2017, marking the first major update to the Colorado Open Records Act (CORA) in more than 20 years. The amendments to CORA are effective on Aug. 9, 2017.
The most significant change brought on by the legislation is that records regularly kept in a sortable or searchable format (e.g., an Excel spreadsheet) must be made available to the public in that format. Before the change, records could be produced in any format determined by the custodian and otherwise-searchable records could be produced in a non-searchable/sortable format.
If it is not “technologically or practically feasible” to provide the documents in a searchable or sortable format, the custodian may provide the records in an alternate format after making “reasonable inquiries” (e.g., with a consultant or IT department) to determine feasibility. The custodian must provide a written rationale for the decision to provide the record in an alternate format. If the custodian’s decision is challenged and overruled in court, attorney’s fees will not be awarded to the plaintiff unless the custodian acted in an “arbitrary and capricious” manner.
The fee provisions of CORA remain unchanged, although it remains to be seen how the other amendments will affect the amount of fees charged by public entities.
If a record contains information that cannot be disclosed under CORA (e.g., privileged or protected information), the custodian has a duty to redact that information and provide the record, rather than denying the request. As above, if it is not “technologically or practically feasible” to redact the record, the custodian must make reasonable inquiries and provide written notice to the requestor.
Before its amendment, CORA allowed for criminal charges against a custodian who “willfully and knowingly” violates the open-records law. The legislation removes this seldom-used provision.
House Bill Extends Wait for Public Record Challenges
In addition to the changes made by SB 17-040, another bill, House Bill 17-1177, changed the process by which an individual may challenge a denial of a public record. Under previous law, the plaintiff needed to wait three business days to challenge the denial in court. The new law, which also takes effect on Aug. 9, provides that a requestor must wait 14 days, during which time the requestor must speak to the records custodian to “determine whether the dispute may be resolved” outside of court.
Picture courtesy, Colorado Freedom of Information Coalition.