A records request submitted by Boulder Weekly has found that in 2012, reporters for the Boulder Daily Camera were given records for free most of the time, were directed to the appropriate custodian of records and were not charged as much as BW or individual citizens have been charged lately for records requests.
City of Boulder employees continue to defend the city’s $35-an-hour charge to perform Colorado Open Records Act (CORA) searches, saying it represents costs from various departments and it’s only a fraction of the city’s actual costs.
And city spokespeople defended Boulder’s practice of requiring requesters to pay the estimated costs of research before the research takes place, without later providing the time the research actually took and how much the requester actually should have paid.
But there may not be a conspiracy to bilk BW — or use charges to block the newspaper from accessing records. Instead, it appears there was a move in the summer of 2012 to charge a lot more than the city ever had for open records.
During its 10-part series on contamination at Valmont Butte, written in the first half of 2012, BW was not charged for access to most city records. In some cases, BW reporters were allowed access to a city-owned computer with records on it and were only charged printing costs. During the same period, a Camera reporter was charged $105 for requested records. BW has not been asked for less than $140 in the past six months.
But in August, only a few months after BW was given City Attorney Tom Carr’s phone records and financial disclosure forms for city council members for free, the city’s practices changed — and with a bang. Carol Affleck, a citizen concerned about the Valmont Butte cemetery, was told it would cost $1,050 for records she wanted.
Throughout October and November, the city asked Boulder resident Mark Gelband for $2,975 for records he requested. Then, in January 2013, BW was asked for $700, then $350, then $140 for records. The last was for records related to the Camera’s CORA requests.
But while some were facing new, high charges in the second half of 2012, Camera reporter Erica Meltzer wasn’t. She submitted four CORA or CORA-style requests in 2012. One returned no documents, one was filled for free and two appear incomplete in records provided to BW.
An August request from Meltzer was met with no charge and a note that the city’s central records office had no documents related to her request. Since Meltzer had requested “emails or other written correspondence,” her request was forwarded to the city’s IT department, which handles records requests for emails. But that’s where the trail ends — in the documents provided, there are no emails between Meltzer and the IT department.
In two other cases, Meltzer apparently received records without paying, according to the documents provided to BW. Meltzer offered to file a CORA request in a January 2012 email, and emails from city staff suggest she got what she requested without a formal CORA response, without charge. Most recently, city spokesperson Sarah Huntley says she forwarded Meltzer emails she requested directly, again without charge.
Lastly, in October, city spokesperson Jennifer Bray responded to a Meltzer CORA request with the requested documents at no charge.
The last remaining request filed by the Camera in 2012 was a joke on the occasion of a city employee’s retirement. Nobody responded to it, apparently.
Meltzer declined to comment. Media attorney Steve Zansberg of Levine Sullivan Koch & Schulz told BW that government agencies can’t discourage negative coverage by using discrimination, retribution or retaliation.
“They have to charge all members of the media the same,” he says. “The motivation is irrelevant.”
City spokesperson Sarah Huntley said in an interview that the requests were filled without payment because Camera reporters’ requests are usually narrower than BW requests.
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For the CORA request asking for the Camera’s open records history, the city’s IT department estimated four hours of work, costing $140.
After receiving the results of that request — six requests and 12 total emails — BW asked for a log of the department’s time. The city’s policy on open records requires that logs be kept. While Director of Communications Patrick von Keyserling told BW that one was kept, he did not provide it.
As with the city’s other CORA responses, no evidence was given that the estimated time, four hours, was accurate — or that $140 was the true cost.
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When asked about the city’s approach to open records requests, Carr said in an interview that the boilerplate letter the city uses to justify the cost of providing documents and set an extended timeline for producing them is not automatically sent out in response to all requests, only large ones.
Carr said his office declined a BW request for that letter because it might set a precedent that would make other materials public, like the notes used to develop it.
When asked about claims by Seattle media and attorneys that he broadened the types of materials that could be kept secret under the guise of attorney-client privilege while he served as city attorney for Seattle, Carr told BW that a Seattle newspaper initiated legal action to assert that the state’s open records law trumped attorney-client privilege, and he was simply defending that privilege. He insisted that his intent was not to broaden it, just to protect it from being compromised by the open records law, and the state’s Supreme Court ruled in his favor.
He acknowledged that the city’s approach has changed in recent months, but only because the city attorney’s office has directed departments to follow the city’s policy on access to public records, which was created in 2001 and updated in 2006. He says his office has tried to educate city employees to be methodical and comprehensive about providing the requested records.
“I believe we’re doing it better now,” Carr says, adding that sometimes it used to take a couple of weeks for city staff to respond to records requests.
When asked how $35 an hour could possibly be viewed as a “nominal” amount of the city’s actual search and retrieval costs, as required by state law, he pointed out that the city attorney’s office normally bills $125 an hour in its budget calculations, and the planning department’s hourly rate is higher than $35 as well. Carr says that unlike other communities, which charge on a sliding scale depending on who is handling the records request, Boulder just charges a flat rate.
He also said that while the city’s central records department currently reports to him, open records requests are not automatically routed through his office, they are handled by the department where the records are kept.
Carr also asserted that CORA doesn’t necessarily require government agencies to produce documents within a three-day period or seven-day extension.
CORA states, “The date and hour set for the inspection of records not readily available at the time of the request shall be within a reasonable time after the request. … A ‘reasonable time’ shall be presumed to be three working days or less. Such period may be extended if extenuating circumstances exist. However, such period of extension shall not exceed seven working days.”
But Carr told BW that the law is not clear. He said that “it’s about what is possible” when accommodating very large requests.
Carr denied that officials’ approach to BW shifted after the newspaper printed critical coverage of city government, from Valmont Butte to appearances of impropriety among city council members. He said there is no double standard in how the city has responded to requests filed by BW and the Camera.
“That would not be our goal or policy,” he says. “We would treat you as we’ve always treated you. … We don’t look at who the requester is.”
He says that while a stiff fee for a records search may encourage a requester to narrow the scope of his or her request, there is no concerted effort to use exorbitant fees to discourage people from asking to see the public’s documents.
“That’s not my intent at all, it’s to have a system that works,” Carr says.
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In 2003’s Black v. Southwestern Water Conservancy District, the Colorado Court of Appeals ruled that any CORA fee must be “nominal,” legally defined as “trifling, esp[ecially] as compared to what would be expected.” Under that definition, the city’s actual costs — which do not include things like producing paper copies — should be higher than $35 an hour, so much higher that the totals accumulated by requesting $35 an hour are trifling in comparison.
The annual salary of the average employee working on CORA requests should be much higher than $72,800, which is $35 an hour. Requesters could be paying 50 percent of their salary ($145,600), or 40 percent ($182,000), or 25 percent ($291,000). The highest-paid city employee, Executive Director of Energy Strategy Heather Bailey, makes $250,000 annually, so the city’s definition of “trifling” is higher than 25 percent.
Huntley says $35 an hour is within the law’s stipulations. She points out that the city attorney’s office reviews CORA results when they include staff emails, to make sure nothing is released that should not be public record. She says that in the case of Meltzer’s free results, like the November one, she forwarded emails from city council members’ accounts.
“The city’s position is that we are in compliance with the law, and the fee that we charge meets the definitions described by the court,” she says.
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Since Carr’s arrival in 2010, Boulder has seen some visible changes from the city attorney’s office. Former City Attorney Jerry Gordon, who retired before Carr was hired, says CORA procedures have also changed under Carr.
Gordon hesitated to make definitive statements, saying he couldn’t remember many particulars from his two-year stint as city attorney.
“Most requests were simply, the information was provided,” he says. “Lawyers were never involved. …
“I don’t remember what the charges were then,” he says. “I don’t think I ever had anything to do with what the charges were. If I did, it was so tangential.”
Gordon says that during his tenure, the office of the city attorney wasn’t involved with CORA requests.
“[Most records requests] never went to attorneys at all. There was no reason to keep it secret and it was public,” he says. “Sometimes I think the departments remembered to charge and I don’t remember what they charged. They never asked me what to charge, as far as I can remember.”