Joyce Reno, in her official capacity as Chafee County Clerk and Recorder, Petitioner:
Marilyn Marks, Respondent:
Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 12CA2613.
In this case brought under the Colorado Open Records Act, § § 24-72-200.1 to -206, C.R.S. (2014), the supreme court holds that where an official custodian of records brings a court action under section 24-72-204(6)(a), C.R.S. (2014), seeking an order restricting or prohibiting disclosure of records, a records requestor may recover costs and reasonable attorney fees in accordance with section 24-72-204(5), C.R.S. (2014). Under section 24-72-204(5), a prevailing records requestor is entitled to costs and attorney fees unless the district court finds that the denial of the right of inspection was proper. Here, the district court's order reflects that the official custodian's denial of the request was proper. Consequently, the records requestor is not entitled to attorney fees in this case.
For Petitioner: Jennifer A. Davis, County Attorney, Chaffee County Attorney's Office, Salida, Colorado.
For Respondent: Robert A. McGuire, Robert McGuire Law Firm, Lone Tree, Colorado.
For Colorado Counties, Inc., Colorado County Clerks Association, Special District Association of Colorado, Colorado Association of School Boards, and The Colorado Municipal League, Amici Curiae: Thomas J. Lyons, Stephanie A. Montague, Hall & Evans, L.L.C., Denver, Colorado.
For The Colorado Press Association and The Colorado Freedom of Information Coalition, Amici Curiae: Steven D. Zansberg, Thomas B. Kelley, Levine Sullivan Koch & Schulz, LLP, Denver, Colorado.
For Colorado Ethics Watch, Amicus Curiae: Luis Toro, Margaret Perl, Colorado Ethics Watch, Denver, Colorado.
[¶1] This case requires us to determine whether a person who requests records under the Colorado Open Records Act (CORA), § § 24-72-200.1 to -206, C.R.S. (2014), may recover costs and reasonable attorney fees where the official custodian brings a court action under section 24-72-204(6)(a), C.R.S. (2014), seeking an order restricting or prohibiting disclosure of the records requested.
[¶2] Shortly before the 2011 election, the Chaffee County Clerk and Recorder received a CORA request from Marilyn Marks for access to voted paper ballots from the 2010 general election. Because the Clerk believed that Colorado law prohibited disclosing voted ballots, and because Marks requested the ballots within twenty days of an upcoming election, the Clerk filed an action in district court under section 24-72-204(6)(a) seeking an order prohibiting or restricting disclosure of the ballots. Before the district court ruled on the merits of the Clerk's request, however, the General Assembly enacted section 24-72-205.5, C.R.S. (2014), providing that voted ballots are subject to CORA and describing the process by which records custodians must make them available. The Clerk then produced a single voted ballot for Marks to inspect, and the parties agreed that the only remaining issue in the case was whether Marks was entitled to costs and attorney fees.
[¶3] The district court acknowledged that a prevailing applicant who brings suit to compel disclosure under section 24-72-204(5) is entitled to costs and reasonable attorney fees. The court nevertheless held that section 24-72-204(5) did not apply to this case because Marks did not obtain a favorable court order or judgment on any claim or counterclaim brought under that provision; rather, the Clerk initiated the action under section 24-72-204(6)(a). The court further held that section 24-72-204(6)(a) did not authorize an award of costs and fees to a requestor where, as here, the custodian filed in district court seeking an order prohibiting disclosure of records.
[¶4] The court of appeals reversed, holding that CORA's fee-shifting provision mandates an award of attorney fees to a prevailing records requestor, regardless of which party initiates litigation. Reno v. Marks, 2014 COA 7, ¶ ¶ 1, 15-16,
__ P.3d __. The court of appeals concluded that Marks was a prevailing applicant and that the district court erred in denying her request for attorney fees. Id. at ¶ 14.
[¶5] We hold that where an official custodian seeks an order prohibiting or restricting disclosure under section 24-72-204(6)(a), a prevailing records requestor is entitled to costs and attorney fees in accordance with section 24-72-204(5). Under section 24-72-204(5), a prevailing records requestor is entitled to costs and attorney fees unless the district court finds that the denial of the right of inspection was proper. Here, the district court's order reflects that the Clerk's
denial of Marks' request was proper. Consequently, Marks is not entitled to attorney fees in this case. We therefore reverse the judgment of the court of appeals.
I. Facts and Procedural History
[¶6] On October 7, 2011, Marilyn Marks sent Joyce Reno, the Chaffee County Clerk and Recorder, an email request to review " some voted ballots from the 2010 general election." Marks explained that she wanted to demonstrate to the public and the press that voted ballots are public records subject to inspection under CORA. The county attorney replied to Marks' email, explaining that the Clerk's Office was unable to respond to the request until after the impending election. The attorney also stated that the Clerk considered the request voluminous and unduly broad because it did not identify the ballots Marks wished to review.
[¶7] On October 11, Marks sent another email with a narrower request, asking to inspect and copy " the first anonymous/untraceable" mail-in ballot in the first box of mail ballots from the 2010 election. In this email, Marks gave the Clerk notice, as required by CORA, of her intent to apply to the district court for an order permitting disclosure if the Clerk denied her request. See § 24-72-204(5), C.R.S. (2014) (requiring an applicant who has been denied inspection of public records to give the custodian at least three business days' notice of the applicant's intent to file an application in district court). Two days later, the county attorney responded that the Clerk could not determine if disclosure was prohibited and believed that disclosing voted ballots would do substantial injury to the public interest. The county attorney also informed Marks that the Clerk was petitioning the district court under section 24-72-204(6)(a), C.R.S. (2014), to determine whether voted ballots were subject to CORA.
[¶8] In her petition filed with the district court, the Clerk did not assert that she was unable to determine whether disclosure of the requested ballot was prohibited. Rather, she stated that she believed, in good faith, that Colorado law prohibited her from disclosing voted ballots. Accordingly, she asked the district court for an " order that disclosure of a voted ballot is prohibited." The Clerk explained that many ballots from the 2010 general election had handwritten signatures or other identifying marks, and that some precinct and ballot style combinations were unique to one or two voters. She noted that no statutes, cases, rules, or protocols defined whether a particular ballot was " anonymous" or " untraceable," as Marks requested. The Clerk further observed that under Colo. Const. art. VII, sec. 8, an election official cannot " disclose how any elector shall have voted" and that section 1-13-712(3)--(4), C.R.S. (2014), makes it a criminal offense for an election official to " reveal to any other person the name of any candidate for whom a voter has voted." Although the Clerk was aware of the court of appeals' recently issued decision in Marks v. Koch, 284 P.3d 118, 124 (Colo. App. 2011), holding that digital images of anonymous ballots are eligible for inspection under CORA, she noted that the ruling did not address criminal liability under the Election Code, § 1-13-712(3)--(4), and involved distinguishable facts.
[¶9] The day after the Clerk filed her petition with the district court, the Secretary of State's Office issued an Election Alert, offering guidance to county clerks regarding CORA requests to inspect voted ballots. The Election Alert explained that the Secretary of State read Koch to require county clerks to make voted ballots available for inspection in accordance with CORA unless a ballot contains marks that could identify the voter who cast the ballot. The Election Alert also noted that if extenuating circumstances made it impractical or impossible for a county to comply with a request in light of the impending election, custodians could seek declaratory relief in district court.
[¶10] The Clerk did not withdraw her petition following the Election Alert. However, before the court issued a ruling on the petition, the parties stipulated to hold the case in abeyance in light of proposed legislation addressing the disclosure of voted ballots under CORA. In June 2012, the governor signed into law House Bill 12-1036, which added section 24-72-205.5, C.R.S., providing that voted ballots are subject to inspection under CORA and requiring custodians to protect voter privacy by ensuring ...