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Shook v. Pitkin County Board of County Commissioners

Court of Appeals of Colorado, Fourth Division

June 18, 2015

Elesabeth R. Shook, Plaintiff-Appellant,
v.
Pitkin County Board of County Commissioners, and John Ely, in his official capacity as Pitkin County Attorney Defendants-Appellees.

Pitkin County District Court No. 13CV52 Honorable Gail H. Nichols, Judge

Garfield & Hecht, P.C., Christopher D. Bryan, Angela M. Vichick, Aspen, Colorado, for Plaintiff-Appellant

John M. Ely, County Attorney, Christopher G. Seldin, Assistant County Attorney, Laura C. Makar, Assistant County Attorney, Aspen, Colorado, for Defendant-Appellee

OPINION

GRAHAM JUDGE

¶ 1 Plaintiff, Elesabeth R. Shook, appeals the district court's order denying access to certain public records under the Colorado Open Records Act (CORA), sections 24-72-201 to -206, C.R.S. 2014. We reverse and remand with directions.

I. Background

¶ 2 In August 2012, the Pitkin County Attorney's Office, which is responsible for enforcing the Pitkin County Land Use Code, received a citizen complaint[1] regarding a potential code violation on Shook's property. The Pitkin County Code Enforcement Officer, Carrington Brown, who is a member of the county attorney's office, investigated the complaint. After determining that Shook had not obtained a necessary construction permit, Brown issued her a notice of violation. Shook cured the violation by obtaining a permit shortly thereafter. The county attorney took no further action.

¶ 3 Several months later, Shook submitted a CORA request to the county attorney (custodian) seeking access to, among other things, records related to the violation. The custodian provided some documents in response to Shook's request, but denied access to (1) the original citizen complaint, which included the name and phone number of the complainant; and (2) Brown's handwritten notes.[2]

¶ 4 Shook subsequently filed this action seeking a declaratory judgment that the custodian violated CORA by withholding the records, an order directing the custodian to disclose the records, and attorney fees and costs. Following a hearing, the district court held that the custodian properly denied access to the records under CORA's investigatory records exception, section 24-72-204(2)(a)(I), C.R.S. 2014.

II. Standard of Review

¶ 5 We review de novo questions of law concerning the construction and application of CORA. Harris v. Denver Post Corp., 123 P.3d 1166, 1170 (Colo. 2005). Though the district court's factual findings are reviewed for clear error, we review its ultimate conclusion that a CORA exception applies for abuse of discretion. See Blesch v. Denver Publ'g Co., 62 P.3d 1060, 1063 (Colo.App. 2002) (reviewing for abuse of discretion the district court's finding that disclosure of certain public records would cause substantial injury to the public interest).

III. Law

¶ 6 The General Assembly has declared that it is "the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except . . . as otherwise specifically provided by law." § 24-72-201, C.R.S. 2014; See Denver Publ'g Co. v. Bd. of Cnty. Comm'rs, 121 P.3d 190, 195 (Colo. 2005). To accomplish this policy it enacted CORA, which requires the custodian of public records to make them available for inspection subject to certain exceptions. Denver Publ'g Co., 121 P.3d at 195; see § 24-72-203(1)(a), C.R.S. 2014. In light of CORA's broad legislative declaration, there is a strong presumption in favor of disclosure. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1156 (Colo.App. 1998); see Blesch, 62 P.3d at ...


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