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This document sets forth the Open Records Act Compliance Policy for the Office of the Governor (the “Office”), established pursuant to C.R.S. § 24-72-203(1)(a) and revised effective August 1, 2008. This policy is established in order to ensure that the Office complies in all respects with the Colorado Open Records Act (“CORA”) and, at the same time, meets all of its constitutional and statutory duties to the People of Colorado in an orderly and expeditious manner. This policy specifically aims to ensure that requests for inspection of public records are accurately fulfilled; that all applications for inspection are treated fairly and uniformly; that information and/or documents that are privileged or confidential under Colorado law are not disclosed to the general public; that requests for inspection do not interfere with the regular discharge of the duties of the Office; that documents that are not subject to public disclosure are properly and uniformly protected; and that disclosure of documents does not stifle honest and frank discussion within government.
All requests made of the Office pursuant to the Colorado Open Records Act (“CORA requests”) must be in writing and specifically describe the documents requested. A records request complying with this paragraph is referred to in this document as a “written request.” If any employee receives a written CORA request via U.S. mail, hand-delivery, facsimile, e-mail, or any other means, he or she shall immediately deliver a copy of the written request to the Office of Legal Counsel. The time of a CORA request for purposes of C.R.S. §24-72-203(3) is the time when a request complying with paragraph 1 is opened during regular working hours (nonholiday weekday from 8:00 a.m. to 5:00 p.m.) in the normal course of business by Office staff. An e-mail is “opened” when it is viewed by the recipient; a letter is “opened” when its seal is broken; and a facsimile is “opened” when it is successfully transmitted. Regular working hours are 8:00 a.m. to 5:00 p.m. on weekdays, excluding state holidays. If a CORA request is received after regular working hours, it is deemed opened at 8:00 a.m. on the next working day. No employee of the Office shall intentionally delay opening correspondence or deviate from his or her normal practice in opening correspondence because he or she anticipates that the correspondence contains a CORA request.
5. All records requests shall be treated similarly, pursuant to the rules and procedures set forth in this Policy.
Office of the Governor Open Records Act Compliance Policy Page 2 of 6 The provisions of this policy shall only apply to requests for the inspection and/or copying of public records. If an applicant requests information or an answer to a particular question, the applicant shall be informed that requests for information or answers to questions are not governed by CORA. The appropriate Office staff, including an attorney in the Office of Legal Counsel, shall review all records before they are subject to public inspection to ensure that no information is disclosed that is confidential, privileged, or otherwise excepted from disclosure pursuant to Colorado law. In no event shall an employee destroy or modify a requested record. The Office of Legal Counsel may, however, redact confidential, non-public, or otherwise excepted information where appropriate. Employees shall never create new documents in response to a request without first consulting with the Office of Legal Counsel. Employees shall not allow general access to Office files as doing so would risk the unlawful disclosure of confidential information or the waiver of a privilege. If an applicant requests copies of public records that are subject to inspection, the Office shall supply such copies at a fee of $0.25 per standard page, as permitted by C.R.S. § 24-72-206(5). All checks should be made payable to “State of Colorado.” It is the Office’s policy not to provide public records to applicants in a form that can be altered. Therefore, employees shall not provide public records to applicants in a form that can be altered without first consulting with the Office of Legal Counsel. A person commits a misdemeanor if he or she willfully and knowingly violates the Colorado Open Records Act or if he or she knowingly makes a false entry or falsely alters an official book, paper, or record used by or in the Office. C.R.S. §24-72-301; C.R.S. §18-8-114. Employees shall comply in all respects with the Office’s Document Retention Policy, which provides that employees of the Office shall retain electronic copies of documents for no more than 30 days after their receipt or creation or, if 30 days after their receipt or creation they are still in current use or will be used in the future, until such time as they are no longer being used by the Office. The procedures set forth in this policy are subject to interpretation by the Office, and exceptions may be made in individual cases at the discretion of the Chief of Staff or Chief Legal Counsel.
Office of the Governor Open Records Act Compliance Policy Page 3 of 6 Based upon the foregoing, the Office shall follow the following procedures in responding to CORA requests: Phone Requests
If an employee receives a records request over the phone, he or she shall follow this procedure: Writing Requirement: The employee shall inform the applicant that he or she must make the request in writing to the Director of Communications or Office of Legal Counsel and specifically describe the documents requested. Fax and e-mail requests are considered “in writing.” Employees may inform applicants that the Office has this policy to ensure that requests are accurately fulfilled and that the Office complies with State law. No Estimations/Predictions: The employee shall not estimate or predict the availability of records or speculate about the contents of records. Notification: Employees who receive public records request from constituents, members of the press, or other individuals or entities must report such requests immediately to the Office of Legal Counsel. B. Written Requests
If any employee receives a written request via U.S. mail, hand-delivery, facsimile, e-mail, or any other means, he or she shall immediately deliver a copy of the request to the Office of Legal Counsel. Employees shall record the time at which written requests are opened. The time that a written request is deemed open is set forth in paragraph 3 above. If necessary, the Chief of Staff or a member of the Press or Legal Office shall request that an applicant clarify his or her records request. In no event, however, shall an employee broaden or narrow or clarify a request for the applicant as this may result in and inaccurate or incomplete response. C. Preparation of Records
The Office of Legal Counsel shall determine whether the records requested are “public records” and whether they are subject to public inspection. Upon receipt of a request or at the direction of the Office of Legal Counsel, an employee who has records responsive to a written request shall gather all responsive documents (whether subject to disclosure or not) and provide them to the Office of Legal Counsel for review. In no event shall an employee allow for the inspection or disclosure of Office records without first consulting the Office of Legal Counsel.
Office of the Governor Open Records Act Compliance Policy Page 4 of 6 Certain records, including but not limited to the following types of records, receive special treatment under CORA and, therefore, require the special attention of the Office of Legal Counsel:
• • • • • • • •
Attorney-client communications (City of Colo. Springs v. White, 967 P.2d 1042 (Colo.1998), and Black v. Southwestern Water Conservation Dist., 74 P.3d 462, 467 (Colo. App. 2003)); Work product assembled for the benefit of advising the Governor that express an opinion or is deliberative in nature and is communicated for the purpose of assisting the Governor in reaching a decision within the scope of his authority (C.R.S. §§ 24-72-202(6)(a)(II)(A), 24-72-202(6)(b)(II), and 24-72-202(6.5)); Elected official correspondence (C.R.S. § 24-72-202(6)(a)(II)(C)); Certain other deliberative materials (C.R.S. § 24-72-204(3)(a)(XIII)); Documents unrelated to the conduct of official state business, including personal correspondence (Denver Publ’g Co. v. Bd. of County Comm’rs of Arapahoe County, 121 P.3d 190 (Colo. 2005), and In re Wick Commc’ns Co. v. Montrose County Bd. of County Comm’rs, 81 P.3d 360 (Colo. 2003)); Documents related to draft bills prepared by the Office of Legislative Legal Services pursuant to C.R.S. § 2-3-505 (C.R.S. § 24-72-202(6.5)(b)); Specialized details of security arrangements (C.R.S. § 24-72-204(2)(a)(VIII)); Investigatory files compiled for law enforcement purposes (C.R.S. § 24-72-204(2) (a)(I)); Criminal justice records (C.R.S. § 24-72-301, et seq.); Documents that may not be disclosed under state law, federal statute or regulation, or a court order (C.R.S. § 24-72-204(1)); Personnel files, including letters of reference (C.R.S. §§ 24-72-204(3)(a)(II)(A) and 24-72-204(3)(a)(III)); Records of sexual harassment (C.R.S. § 24-72-204(3)(a)(X)); Medical records (C.R.S. § 24-72-204(3)(a)(I)) Trade secrets (C.R.S. § 24-72-204(3)(a)(IV)); Real estate appraisals (C.R.S. § 24-72-204(2)(a)(IV)); Certain records submitted by applicants for non-classified executive positions who are not finalists and who previously requested non-disclosure in writing (C.R.S. § 24-72-204(3)(a)(XI)); Email addresses provided by a person to the Office for the purpose of future email communication from the Office (C.R.S. § 24-72-204(2)(a)(VII)); Certain personal information, including home addresses, telephone numbers, financial information (including history of pay prior to state employment), and social security numbers (C.R.S. §§ 24-72-204(3)(a)(IV) and 24-72-204(3.5));
The Office of Legal Counsel shall make the determination whether any potentially responsive document is a “public record” and whether such record falls within any exception contained in CORA. D. Response to the Request
Office of the Governor Open Records Act Compliance Policy Page 5 of 6 Not in custody of the Office If the record requested is not in the custody or control of the Office, the Office shall notify the applicant immediately that the requested document is not in the custody of the Office. The Office shall notify the applicant and provide, to the best of its ability and belief, the location of the record requested. Not Subject to Inspection If the record requested is in the custody and control of the Office, but is either not a “public record” or is not open to inspection under Colorado law, the Legal Office or the Chief of Staff shall notify the applicant of this fact as soon as possible, but not more than three working days after the request is made, as defined in paragraph 3. Readily Available If a record requested is in the custody and control of this Office, and, in consultation with the Office of Legal Counsel, is determined to be a “public record” and open to inspection under Colorado law, the Office shall be directed by the Office of Legal Counsel to immediately schedule a time at which the applicant may inspect the record. The Office shall then notify the applicant in writing of the date and time tha the record will be available for inspection. Not Readily Available If the record requested is in the custody and control of the Office and, in consultation with the Office of Legal Counsel, is determined to be a “public record” open to inspection under Colorado law, but is in active use, in storage, or otherwise not readily available, the Office shall be directed by the Office of Legal Counsel to immediately notify the applicant of this fact in writing. The Office shall set a date and hour when the records will be available for public inspection that is within three (3) working days of the request as defined in paragraph 3 of this Policy. The Office may extend this period up to seven additional working days if any of the extenuating circumstances specifically described in C.R.S. §24-72-203(3)(b) exist. Overly burdensome request If applicant’s requests encompasses an excessively voluminous number of documents or would be unduly burdensome to prepare for inspection within the statutory timeframe, then the Office, at the direction of the Office of Legal Counsel, shall confer with the applicant in an effort to narrow the request and/or reach an accord regarding a mutuallyacceptable timeframe to provide a response. If, however, the applicant declines to modify the request in such a manner that the Office is able to respond within the statutory timeframe, then, at the direction of the Office of Legal Counsel and upon the approval of the Chief of Staff, the Office may apply to a court of competent jurisdiction for an order providing relief from timely compliance. See Citizens Progressive Alliance v. Southwestern Water Conservation Dist., 97 P.3d 308, 312 (Colo. App. 2004). Such an measure is reserved for extraordinary circumstances and shall not be exercised “simply to avoid or delay having to comply with a legitimate CORA request.” Id.
Office of the Governor Open Records Act Compliance Policy Page 6 of 6 E. Copies
If an applicant requests copies of records, he or she shall be provided such copies, subject to the conditions set forth in paragraph 11. F. Scanning
CORA requires a custodian of public records to provide a copy of the responsive records upon the request of the applicant, if the custodian has access to copying equipment. See C.R.S. § 24-72-205(1). CORA further requires the custodian to make such copies and authorizes the custodian to charge a fee as prescribed in the Act, which for this Office is $0.25 per standard page as set forth above. See C.R.S. § 24-72-205(1) and (5). The Office satisfies this obligation by providing an applicant with the opportunity to access the responsive documents for an inspection and by offering to copy the responsive public records upon payment of the Office’s standard copying fee. CORA does not require a custodian to furnish public records in electronic format (such as in an Adobe Acrobat file) when, as is the case with this Office, the custodian has the facilities to make photocopies. See C.R.S. § 24-72-205(1) and (2). Nor does CORA require a custodian to grant an applicant access to public offices in order for the applicant to duplicate public records using his or her own equipment when the custodian has the facilities to make the copies. See C.R.S. § 24-72-205(1) and (2). Moreover, providing documents in electronic form (by scanning and saving them as Adobe Acrobat files) or supervising the applicant as he or she scans such documents is as, if not more, burdensome and costly for the Office as compared to making and providing copies of the requested public records.
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