In a Dec. 9 opinion, the Colorado Supreme Court sided with a local attorney in a case with Archuleta County involving access to public records.
In the ruling, the court affirms that attorney Matt Roane’s status as a litigant against the county did not preclude him from requesting records related to the litigation from the county under the Colorado Open Records Act (CORA).
It also sets precedence for future similar situations.
The opinion was delivered by Justice William W. Hood III and joined by justices Brian D. Boatright, Richard L. Gabriel, Melissa Hart and Maria E. Berkenkotter.
Chief Justice Monica M. Marquez and Justic Carlos A. Samour Jr. concurred only in the judgment, but presented a different take on the matter.
The case
The case resulting in Monday’s opinion began in the fall of 2020, with Monday’s opinion providing a brief history of the events leading up to the Supreme Court’s involvement.
That fall, Roane filed a declaratory-judgment action against Archuleta County Clerk and Recorder Kristy Archuleta alleging that the board should have taken minutes of its Sept. 22 “work session.”
Then, instead of submitting document requests under rules related to the litigation, the history included in the opinion states, Roane submitted a CORA request to Archuleta for documents related to the Sept. 22 “meeting” and a recording of the related Oct. 6, 2020, meeting.
The county denied Roane’s request, with a letter from Archuleta County Attorney Todd Weaver stating that the county did not have to produce the materials because the CORA request was seeking to support Roane’s motion for summary judgment in violation of CORA and the Colorado Rules of Civil Procedure (CRCP) Rule 34.
The denial also cited a 1980 court opinion — Martinelli vs. District Court.
“The letter didn’t explain how the request would violate Rule 34,” the court’s opinion states.
Rule 34 relates to “Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes,” according to the CRCP.
In January 2021, Roane filed a lawsuit related to the CORA request, asking for an order to show case for why the Oct. 6, 2020, recording should not be made available and make the recording available to him.
“The district court granted the motion to show cause, noting that Archuleta’s argument ‘presupposes that [C.R.C.P.] 16.1 prohibits [Roane] from preparing his case by obtaining evidence independent of the discovery and disclosure procedures outlined in Rule 16.1.’ Because Rule 16.1 creates no such prohibition, the district court ordered Archuleta to produce the recording,” the opinion states.
In February 2022, the county appealed the district court’s order, “arguing that the district court erroneously permitted Roane to use a CORA request to ‘supplant discovery practice in civil litigation, in complete contradiction to’ Martinelli and City of Colorado Springs v. White ...,” the order explains.
A division of the Court of Appeals disagreed.
The opinion explains, “In a unanimous published opinion, it held that the plain language of CORA, relevant Colorado caselaw, and persuasive precedent from other jurisdictions support Roane’s position that litigation against a public entity doesn’t preclude a litigant’s use of CORA to inspect that entity’s public records.”
That ruling was then appealed to the Supreme Court.
The Supreme Court takes the case
The case was argued in front of the Supreme Court on Sept. 24.
Oral arguments on behalf of Archuleta were made by Weaver with the rebuttal arguments made by Andrw Ringel, who represents amicus curiae Colorado Counties Inc.
Arguments on behalf of Roane were made by Tim Macdonald of the amici curiea American Civil Liberties Union of Colorado and Colorado Freedom of Information Coalition.
Each side was allowed 20 minutes to present arguments and answer questions from the justices.
The opinion released on Dec. 9 indicates that standard of review, commonplace principles of interpretation, CORA, rules of civil procedure, Colorado caselaw, federal precedent interpreting the Freedom of Information Act and other states’ understanding of similar open records statutes are taken into account during analysis.
In the analysis portion relating to CORA and the rules of civil procedure, the opinion notes Rule 34 governs the production of documents, but doesn’t address requests for open records.
Rule 16.1, “which governs cases subject to simplified procedures such as Roane’s declaratory-judgment action against the Board, limit litigants to five document requests, but it doesn’t address CORA requests by litigants,” it notes.
It adds, “More to the point, none of the relevant rules prohibits a CORA request during litigation. And we are not at liberty to fashion such a rule here. ... Likewise, we are not free to simply treat a CORA request as constituting a request for production of documents in related litigation. Even if we could, line-drawing problems would quickly emerge.”
It further indicates that statute as a whole “indicates that both avenues — discovery requests and CORA — are available to litigants.”
It later notes nothing in CORA’s “plain language limits inspection simply because the public entity is being sued by the requester. On the contrary, the plain language strongly suggests that Roane’s request to Archuleta was proper under CORA.”
The opinion then looks at the county’s argument under the Martinelli case, with the county arguing that Martinelli “interpreted CORA as preventing civil litigants from using the statute to bypass discovery procedures.”
It adds, “The division observed, however, that Martinelli simply ‘stands for the proposition that CORA does not bar production of documents otherwise producible in civil litigation.’ ... We agree with the division.”
It further notes that under the Colorado Springs case, the court concluded that CORA incorporated “common-law privileges” and that it “did not interpret them to prohibit the use of CORA by litigants against a public entity.”
The opinion later states the Courts in Indiana, Tennessee and Virginia have interpreted their states’ open records act to permit an individual requesting inspection from a public entity when the individual is engaged in litigation.
It notes that other states with a pending-litigation exemption “put the statutory exception on the books.”
It gives Michigan and Vermont as examples and suggests that if the Colorado General Assembly wishes to add an exception, it could do so (subject to judicial review), but hasn’t yet.
‘Grave concern’ and ‘far-reaching’ impacts
Portions of the 17-page opinion include differing opinions from Marquez and Samour that express “grave concern.”
“I ultimately agree that Matt Roane was entitled to obtain the recording of the Archuleta County Board of Commissioners’ meeting, but only because it amounted to a proper discovery request under the rules of civil procedure promulgated by this court—not because it was a proper request under the Colorado Open Records Act,” Marquez wrote.
Marquez continues, “I write separately to express my grave concern with the majority’s ruling today, which misconstrues CORA, misreads our decision in Martinelli v. District Court, ... and inexplicably cedes our exclusive constitutional authority to promulgate rules governing litigation in our courts. In so doing, today’s decision creates a lopsided litigation environment that will disadvantage public entities subject to CORA and will undermine trial courts’ ability under the Colorado Rules of Civil Procedure to actively manage discovery in civil cases involving such public entities. And it will impact not only cases governed by C.R.C.P. 16.1, but also more complex cases governed by C.R.C.P. 16.
“Moreover, today’s decision does all of this unnecessarily. The same result could easily be reached by treating Roane’s request as appropriate under the rules of civil procedure. Because today’s decision needlessly undermines Colorado’s constitutional separation of powers and distorts the litigation process for public entities across the state, I respectfully concur only in the judgment.”
Marquez also addresses the court’s prior ruling in Martinelli.
“The question before us is whether a party who is litigating a civil action against a public entity may rely on CORA to request documents for purposes of that specific litigation, rather than follow the discovery rules set forth in the Colorado Rules of Civil Procedure promulgated by this court. The answer is no. As we made clear decades ago in Martinelli, Colorado’s open records laws are not intended to ‘supplant discovery practice in litigation,’” it states.
It further suggests the Colorado Constitution is the appropriate starting point for analysis, not CORA, and discusses the court’s rulemaking power under the state constitution, as well as matters relating to discovery requests.
“In sum, once the trial court’s jurisdiction has been invoked through litigation, the rules of procedure promulgated by this court govern that litigation, including the rules of discovery that govern the production and inspection of documents. Nothing in CORA overrides this fundamental principle,” it states.
Marquez’s portion further addresses CORA and Martinelli, stating, “Contrary to the majority’s reasoning, both CORA and our decision in Martinelli expressly recognize the primacy of this court’s procedural rules in the context of litigation.”
It notes that the majority of the court reasoned that none of the rules of procedure governing discovery prohibits a CORA request during litigation, but suggests that the state’s rules of civil procedure “expressly limit the production and inspection of documents in litigation — the very subject matter of CORA.”
It later explains, “More fundamentally, the majority’s analysis misconstrues CORA’s relationship to this court’s rulemaking authority.”
Marquez later writes that she disagrees with the majority’s reading of Martinelli, pointing out that the point of Martinelli was that the “court’s rules of procedure — not CORA — establish the applicable limits of what is discoverable in the context of litigation.”
Following an analysis of non-Colorado law, which it notes is “unhelpful here,” Marquez addresses the impact of the ruling.
“The impact of today’s ruling is far-reaching,” Marquez wrote. “Although this case involves a single request for production of documents in a simplified Rule 16.1 proceeding, today’s decision will affect all civil litigation.”
It adds the decision “effectively nullifies our discovery rules in civil litigation involving public entities subject to CORA.”
Marquez wrote, “After today, litigants who sue public entities can file unlimited CORA requests for the inspection of documents they would otherwise have to acquire through the rules of discovery. And they can do so without regard to discovery deadlines or limitations.”
After discussing the impacts to timelines and rules of discovery, Marquez writes, “What is particularly unsettling about today’s ruling is that it results in an uneven playing field in litigation for state agencies and local government entities subject to CORA. Those entities must abide by discovery limits and deadlines, but after today’s ruling, their private opponents need not do the same. Indeed, a private litigant could submit a flurry of CORA requests simply to overwhelm an opposing public entity during litigation, including on the eve of trial. The potential impact on public entities cannot be overstated.
“Any suggestion that a trial court can simply manage this new environment by regulating the admission of documents on the back end is wishful thinking and is unfair to our trial courts.”
It later suggests all of the impacts could have been “readily avoided,” noting Roane was entitled to five document requests.
“To resolve the dispute before us, I would simply construe Roane’s request as a proper discovery request and allow it,” Marquez wrote.
Marquez states in the conclusion that the decision unnecessarily relinquishes power and that CORA will be used to supplant discovery practice in civil litigation.
“Our rules of civil procedure demand active management of discovery in litigation to secure the just, speedy, and inexpensive determination of every action. Evenhanded application of those rules ensures equal treatment of all parties who come before our courts, including government and public entities. Today’s decision not only upsets decades of settled expectations under Martinelli, but it upends the litigation playing field and will negatively impact government and public entities subject to CORA,” it states.
Reactions
In an email to The SUN, Roane writes: “This case has been going on for almost four years. The County was like a dog on a bone. It just would not let the matter drop despite adverse rulings from Judge Wilson and the Court of Appeals. Because of the County’s tenacity though, we now have a final ruling from the Supreme Court that is binding on every court in the state of Colorado. There are no more appeals available. There will be no more confusion moving forward. That clarity in the law completely justifies the past four years of work.
“I am very pleased with the Supreme Court’s decision. It’s a huge win for the little guy. Public records in Archuleta County belong to the citizens. They are our records. The County simply has the job of preserving them for us until we want to use them. I think that point gets forgotten downtown, sometimes. As the Supreme Court said, citizens should be able to use public records for any lawful purpose we like, including litigation. To that end, the County is the librarian of our public records, not the guard dog.
“I think the County’s concern that record requests will unfairly burden governmental entities in litigation moving forward is a strawman. The County is crying crocodile tears. A lawsuit between the government and a citizen never presents a level playing field. The government has been using its vastly greater resources to squash pro se citizens in litigation forever. To whatever extent a few public record requests helps un-tilt that playing field, I am sure the government can handle it. It still enjoys just about every other built-in advantage imaginable in litigation. I’m glad citizens now get one small tool to use in the battle.”
In his statement to The SUN, Weaver wrote, “I am disappointed in the Colorado Supreme Court’s opinion as it is not the result I was hoping for on behalf of my client. However, I do take solace in the concurrence of Chief Justice Marquez and Justice Samour as they grasped the far-reaching implications of the Court’s opinion and the uneven playing field faced by public entities subject to the Colorado Open Records Act in litigation. The only recourse left is to introduce legislation with the General Assembly to add a litigation exception to the Colorado Open Records Act as other states have done, such as Michigan and Vermont.”
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