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Land Use Code Complaints Generally Subject to Public Records Law Says Colorado Appellate Court

Shook v. Pitkin County Board of County Commissioners, 2015 WL 3776876 (Colo. App., June 18, 2015), involved a complaint of a potential land use code violation on Plaintiff’s property. Following an investigation, a notice of violation was directed at Plaintiff, who obtained a permit. No further action was taken on the violation; however, Plaintiff sought all public records concerning the complaint. Defendant supplied some of the requested records, but did not include the name and address of the complainant and certain handwritten notes of the inspector who processed the complaint. Plaintiff filed a declaratory judgment action to obtain that information under the Colorado Open Records Act (CORA), but the trial court upheld the denial of disclosure under an exception in that Act. Plaintiff appealed, seeking the disclosure and statutory attorney fees and costs. 

The Colorado Court of Appeals reviewed the denial under an abuse of discretion standard, noting the public policy for disclosure, except as specifically exempted under the Act, creating a “strong presumption” for public access and placing the burden of proving exemption on the public agency. The specific exemption at issue in this case involved public records involving investigation by prosecutors, which the court found the statute limited to criminal investigations.

The record revealed no evidence that the files related to a criminal matter by the county’s prosecuting attorney, who acts like a District Attorney in Oregon. Rather, the matter was under the supervision of the county’s civil attorney, who had the power to bring criminal complaints for enforcement of county ordinances with the specific permission of the county governing body. The testimony of the sole witness, the enforcement officer, demonstrated that the county used the investigation to secure compliance with its land use code, which was done, if necessary, through civil means (mandamus, injunction and the like). The officer testified that no criminal complaint had ever been made in his eight-year association with the county. Under the circumstances, the court concluded that the matter did not relate to a criminal investigation and the material sought was not exempt from disclosure; thus the trial court abused its discretion in determining otherwise. The court was thus not required to undertake a further determination as to whether the public interest required the disclosure. Because CORA required the award of attorney fees and costs to successful appellants, the case was remanded to require disclosure and to award such fees and costs.

While state public records cases revolve around specific statutory terms and procedures, they generally evince a legislative policy towards disclosure and often contain an exemption so that prosecutors and police are not disadvantaged in determining whether to bring a criminal prosecution. That exemption may well not extend to civil complaints, so that the identity of a complainant in a civil enforcement matter may well be subject to disclosure.

Shook v. Pitkin County Board of County Commissioners, 2015 WL 3776876 (Colo. App., June 18, 2015)

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