Purpose:

To establish District policy and guidelines concerning accessibility of District records.

Background:

The “Open Records Act,” §24-72-201, et seq., C.R.S .  applies to almost all levels of Colorado governmental entities and requires records to be available to the public, although it takes into account the burdens that may be placed on local governments to respond to requests for public records and incorporate a reasonableness standard for the time and cost of producing the materials.

A.  Public Right of Access

Colorado statutes have established as public policy that all public records should be open for inspection by any person at reasonable times, except as provided by law. §24-72-201, C.R.S.

“Public records” is broadly defined to include most documentation maintained by the District and the correspondence of elected officials, including email, whether maintained in hard copy or electronically in digital media. §24-72-202(6), C.R.S.

The “official custodian” (the District officer or employee responsible for the maintenance, care, and keeping of public records) may establish rules regarding the inspection procedures for such records. §24-72-203(1)(a), C.R.S.  Such rules are advisable to maintain a manageable order regarding records and inspection.  In practice, typically the Board adopts by resolution a policy for responding to records requests.

The person requesting inspection is entitled to copies or printouts of the District’s public records.

Special rules apply to records that are kept digitally:

1.           If a public record is stored in a digital format that is neither searchable nor sortable, the custodian shall provide a copy of the public record in a digital format.

2.           If a public record is stored in a digital format that is searchable, the custodian shall provide a copy of the public record in a searchable format unless otherwise requested by the requester.

3.           If a public record is stored in a digital format that is sortable, the custodian shall provide a copy of the public record in a sortable format. §24-72-203(3.5), C.R.S.

4.           If a public record is available in a digital format, the custodian shall transmit a digital copy of the public record in a digital format by electronic mail or by another mutually-agreed upon transmission method if the size

of the record prevents transmission by electronic communication. Except if not technologically feasible, a custodian shall not convert a digital public record into a non-searchable format before transmission. §24-72- 203(3.5), C.R.S.

B. Fees

1.           A copying fee not to exceed 25¢ per standard page may be assessed, unless actual costs exceed that amount. But, no per-page copying fee may be charged for providing records in digital or electronic format. §24-72-205(5)(a), C.R.S.

2.           If the copying or printout is generated from a computer output other than word processing, the cost of building and maintaining that information system may be offset by charging a reasonable allocation to the person requesting the record. However, the District is not required to have or obtain new software solely to accommodate records requests. §24-72-205(4), C.R.S.

3.           A reasonable research and retrieval fee may be charged,  but only if the District has adopted and published on  their website, or elsewhere, a written policy that includes  a specific research and retrieval fee. The fee may not exceed $33.58 per hour, and no charge may be imposed for the first hour of research and retrieval of public records. §24-72-205(6)(a)(b), C.R.S.

4.           Within three working days of receiving the request, the custodian shall notify the record requester that a copy of the record is available but will only be sent once the custodian either receives payment or makes arrangements for receiving payment for all costs and fees associated with the request for and transmission of the public record, unless the custodian has waived all or some of the fees. A custodian of public records must allow the requester to pay with a credit card or electronic payment if the custodian allows the public to pay for any other service or product provided by the custodian by credit card or electronic payment. The custodian may require a requester to pay any service charge or fee imposed by a credit card or electronic payment processor. §§24-72-205(1)(b) and (8), C.R.S.

A.  Transmission of Records

Upon request, the custodian shall transmit a copy of the request- ed public record by U.S. mail, other delivery service, facsimile, or email. The District cannot charge a transmission fee for transmit- ting public records via email.

B.  Response Time

1.           Records must be provided within three working days, or the custodian must provide the requester with written notice that extenuating circumstances exist and the records cannot be provided within three working days.  §24-72-203(3)(b), C.R.S.

2.           Extenuating circumstances for which the response period can be extended an additional seven working days include:

a.      The request is broadly stated, encompasses a large category of records, and is without sufficient specificity;

b.      The request is broadly stated, encompasses a large category of records, and the District is unable to gather the records within three working days because it needs to devote all or substantially all of its resources to meeting an impending deadline or period of peak demand that is unique or not predicted to recur more frequently than once a month; or

c.      The request involves such a large volume of records that the custodian cannot gather the records without substantially interfering with his/her other public duties. §§24-72-203(3)(b)(I) to (III), C.R.S.

C. Denial of Access

The Open Records Act permits (and in some cases requires) the official custodian to deny public access and disallow inspection of the following documents or under the following circumstances:  §24-72-204(1), C.R.S.

1.           If inspection would be contrary to any state statute;

2.           If inspection would be contrary to any federal statute or regulation;

3.           If inspection is prohibited by rules promulgated by the Supreme Court or by the Order of any Court;

4.           Examinations for employment (except as made available for inspection by the party in interest);

5.           Records submitted for applicants or candidates for employment, other than those submitted by applicants or candidates who are finalists for chief executive officer positions (if there are three or fewer applicants or candidates for a chief executive officer position who possess the minimum qualifications, they are all finalists and access to their submitted records may not be denied).

6.           Real estate appraisals, until the subject property has been transferred;

7.           Email addresses provided by a person to the District;

8.           Specialized details of security arrangements or investigations and records of expenditures on security arrangements or the physical and cyber assets of critical infrastructure;

9.           Medical, mental health, sociological, and scholastic achievement data (except as made available for inspection by the party in interest);

10.       Personnel files (except as made available for inspection by the party in interest and the District official or employee who has direct supervisory capacity);

11.       Trade secrets, privileged information, and confidential information or data;

12.       Library records disclosing the identity of a user;

13.       Names, home addresses, electronic mail addresses, telephone numbers, and personal financial information of past or present users of public utilities, public facilities, or recreational or cultural services;

14.       Election records of any person; or

15.       Where disclosure or public access would do substantial injury to public interest. §24-72-204(6)(a), C.R.S.

 Except for limited circumstances involving requests for confiden- tiality of certain information in public records, a custodian may not require a requester to provide any form of identification to request or inspect public records. §24-72-203(1)(a), C.R.S.

If, after having made reasonable inquiries, it is not technologically or practically feasible to permanently remove information that the custodian is required or allowed to withhold within the requested format; it is not technologically or practically feasible to provide a copy of the record in a searchable or sortable format; or if the cus- todian would be required to purchase software or create addition- al programming or functionality in its existing software to remove the information, a custodian is not required to produce a public record in a searchable or sortable format. §24-72-203(3.5), C.R.S.

The determination of whether a document falls within an enumer- ated exception can be a difficult task. If denial of access is based upon injury to the public interest, the District may apply to the Court for an Order permitting the District to restrict disclosure. A person seeking permission to examine the document has the right to appear in the Court proceeding. The attorney fees provi- sions of the “Open Records Act” described in Paragraph F of this chapter do not apply if the Court finds that the custodian in good faith was unable to determine if disclosure was prohibited without a ruling by the Court. §24-72-204(6)(a), C.R.S.

Any person denied access may request a written statement of the grounds for denial, which statement shall be furnished forth- with and cite the law or regulation under which access is denied.

§24-72-204(4), C.R.S. Such person may also apply to the Court for an Order compelling inspection, but must provide at least 14 days written notice prior to filing with the Court. During this 14-day period the official custodian who has denied access must meet with or speak by telephone with the person requesting access to determine if the dispute may be resolved without applying to Court. The meeting may include recourse to any method of dis- pute resolution agreeable to both parties, with the parties sharing common expenses equally. No meeting to determine whether the dispute can be resolved without applying to Court needs to be held if the person requesting access requires expedited access and provides written notice to the District of the expedited need, with factual basis, at least three business days prior to applying to Court. §24-72-204(5), C.R.S.

D. Reasonable Attorney Fees and Costs

If a person denied access successfully obtains a Court Order compelling inspection, the District shall be ordered to pay Court costs and reasonable attorneys’ fees in an amount determined by the Court. §24-72-204(5), C.R.S.

In the event the Court finds that the denial of the right of inspec- tion was proper, the Court shall award Court costs and reasonable attorney fees to the custodian if the Court finds that the action was frivolous, vexatious, or groundless.

E.  Email Policy

Any District that operates or maintains an electronic mail communications system must adopt a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted. The policy must include a statement that employee emails may be a public record and may be subject to public inspection. §24-72-204.5, C.R.S.

*Arguably, if a District utilizes text messaging for District business, they should adopt a similar policy.

Policy:

Records of North Fork Mosquito Abatement District are open to inspection with a three (3) days notice, to set an appointment, as there is no regular staff during normal working hours at District's headquarters located at 39939 O Road, Paonia, CO  81428.   Every person has the right to inspect any District record except those records exempted by statute from public disclosure. 

Procedure:

1.   All requests to view or photocopy District records other than typical billing and account information shall be forwarded to the District's General Manager for processing.

1. When a member of the public requests the inspection of a public record, or requests a copy of a public record, and to the extent such records are not exempt, the General Manager shall, to the extent reasonable, assist the individual in identifying records that are responsive, describe the information technology in which the record exists, and provide suggestions for overcoming any practical basis for denying access to the record.
2. To the extent identifiable public records exist in electronic format, and access to which is not otherwise restricted by law, and to the extent the information is not exempt from disclosure, the information shall be made available to the public in such format, but only if the production will not jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained. The person requesting the information shall bear the cost of producing the record, including the cost to construct the record, and the cost of programming and computer service to produce the record when the District is requested to produce a copy of an electronic record that is produced only at otherwise regularly scheduled intervals or that request requires data compilation, extraction, or programming to produce.
3. District staff shall provide a "Public Records Review Request" to each individual who requests the inspection or photocopying of District records and shall assist the individual in completing the form if so requested.
4. Upon receipt of a completed Request, the District will, when appropriate:
     (a) Indicate the place within which the inspection must be made and the time limitation, if any, for return of the documents.
     (b) Supervise and assist the requestor in reviewing the records.
     (c) Provide copies upon request and after payment of the appropriate fees.
5. The District may temporarily deny or restrict inspection of public records under the following circumstances:
     (a) At the time of the request the records are required by District staff in performing their duties.
     (b) Other persons are inspecting or are waiting to inspect the records.
     (c) The records need to be retrieved from storage.
     (d) At the time of the request supervision of inspection of the records is not possible because of the unavailability of appropriate District personnel.
     (e) A question exists as to the possible exemption of the record from disclosure and the matter must be referred to legal counsel for determination.
6. Any notification of denial of any request for records shall set forth the name and title or position of the District personnel responsible for the denial.

Fees:

A request for a copy of an identifiable public record, for information produced from such a record, or for a certified copy of such a record, must be accompanied by payment of the appropriate fee as determined by District staff based on cost to the District.  Any fee established may be modified from time to time by District staff to reflect actual chargeable costs, and any fee schedule developed shall be made available by the District's District Manager, here the State Legislature has established a statutory fee for any given record, the statutory fee shall be charged.

Records Not Open for Inspection:

The following records are not open for public inspection:

1. Preliminary drafts, notes or interagency or intraagency memoranda which are not retained by the District in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.
2. Records pertaining to pending litigation to which the District is a party, or to claims made, until such litigation or claim has been finally adjudicated or otherwise settled.
3. Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.
4. Geological and geophysical data, plant production data, and similar information, relating to utility systems development, or market or crop reports, which are obtained in confidence from any person.
5. Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination.
6. The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the District relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained.
7. Records the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.
8. Statements of personal worth or personal financial data required by the District acting in the capacity of a licensing agency and filed by an applicant with the District to establish his personal qualifications for the license, certificate, or permit he seeks.
9. Memoranda, correspondence, and writings submitted to the District or its Board of Directors by District's legal counsel pursuant to the attorney-client privilege.
10. The District is prohibited from allowing public access to "trade secrets." "Trade secrets" as used in this context may include, but is not limited to, any formula, plan, pattern, process, tool mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article of trade or a service having commercial value and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.
11. Records pertaining to a utility customer, except to an agent or authorized family member of the customer in question, governmental or law enforcement agencies when appropriate, or unless disclosure is specifically required by law.
12. Documents related to Vulnerability Assessment.
13. The District also possesses the discretion to claim an exemption in those instances where the public interest served by not making the record public clearly outweighs the public interest served by disclosure.