Record charges violate state statutes

Last Tuesday the Saguache Board of County Commissioners approved a motion to release the unapproved audio recordings of the BoCC meetings and written minutes (stamped “draft”) immediately following their meetings.

The resolution states that the charge will be $15 per recording either by USB or email and 25 cents per page for paper copies. No fees will be waived for any reason. The discussion of the fees was not listed as an item on the BoCC agenda.

The decision came in the wake of articles published in the Center Post-Dispatch last month that questioned the BoCC’s withholding of unapproved audio recordings and minutes, a practice that had prevailed for several months. The article pointed out that First Amendment right attorneys working with the Colorado Freedom of Information Coalition (CFOIC) and other press organizations have written that unapproved recordings and minutes must be made available following the meetings.

Such minutes are not to be considered as “deliberative” (since decisions are made during regular meetings) or as “work product,” CFOIC attorney and president Steve Zansberg said in a 2014 article published to the organization’s website. “Draft minutes are not deliberative. They’re not recommendatory. They’re not advisory. They are a recording of what occurred in the previous meeting.”

And even if they were found to be work product, CORA requires their release the moment they are distributed to a board for their use or consideration in a public meeting, Zansberg added.

The Saguache County Clerk and Recorder released previously requested minutes to the Center Post-Dispatch following the article’s appearance. A second article acknowledging the request had been granted ran in the May 2 issue of the paper prior to the motion’s passage last week.

Big problems with fees
While government entities are allowed to charge .25 cent-per-page copy fees under the statutes, the fees are often waived for press persons, schools, non-profits and other organizations. A provision for waiving the fees is included in the statutes. Prior to 2011, the clerk’s office did not charge for copies of minutes delivered to the press.

Most importantly, the statutes show that the county cannot charge anything for transmitting electronic files or charge for the first hour of time spent in researching and retrieving documents. This is specifically included in the Colorado Open Records Act legislation passed in May 2017, which reads as follows:

CRS 24-72-205(1) (b) Upon request for records transmission by a person seeking a copy of any public record, the custodian shall transmit a copy of the record by United States mail, other delivery service, facsimile, or electronic mail. NO TRANSMISSION FEES may be charged to the record requester for transmitting public records VIA ELECTRONIC MAIL. Within the period specified in section 24-72-203 (3)(a), the custodian shall notify the record requester that a copy of the record is available but will only be sent to the requester once the custodian either receives payment or makes arrangements for receiving payment for all costs associated with records transmission and for all other fees lawfully allowed, unless recovery of all or any portion of such costs or fees has been waived by the custodian. Upon either receiving such payment or making arrangements to receive such payment at a later date, the custodian shall send the record to the requester as soon as practicable but no more than three business days after receipt of, or making arrangements to receive, such payment.

CRS 24-72-205(6)  (a) A custodian may impose a fee in response to a request for the research and retrieval of public records only if the custodian has, prior to the date of receiving the request, either posted on the custodian’s website or otherwise published a written policy that specifies the applicable conditions concerning the research and retrieval of public records by the custodian, including the amount of any current fee. UNDER ANY SUCH POLICY, the custodian shall not impose a charge for the first hour of time expended in connection with the research and retrieval of public records. After the first hour of time has been expended, the custodian may charge a fee for the research and retrieval of public records that shall not exceed thirty dollars per hour.

Records requests made by at least two press members to the Saguache County Clerk and Recorder’s office in recent months have involved either audio recordings and/or documents by email or USB device. Typically, the delivery of simple meeting minutes and audio files, even larger files, rarely takes more than five minutes to email or to download, (when USB devices are provided by the requester).
Therefore no charges for either type of records should be assessed if they are delivered in the manner specified above.

State statute also requires that those providing records issue them in searchable formats, and not deliver them to requesters in image-only PDFs. If a public record is “searchable” but not sortable, a government entity must provide a copy in a searchable format. Saguache County meeting minutes and other records provided from their website (land use code, oil and gas regulations, etc.) are not searchable documents.

State law versus county policies, regulations
As noted in previous articles regarding state marijuana laws, a statutory county such as Saguache cannot make regulations contrary to state law. According to the Colorado Municipal League, under the rule of statutory construction, if there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred. This is known as the rule of local government powers.

In other words, Saguache County is not a home rule county and therefore must abide by state statutes.  The original intent of the seven-year battle to persuade the BoCC to record their meetings was to make the meetings’ content more readily available to the press and the public. The purpose of agreeing to audio recordings is frustrated if they cannot be accessed for two weeks after the fact, because they are not yet approved for release. In the meantime, should any issue arise that would require citizen input or a protest, no one is even aware of the problem.

This is especially true because the agendas provided for meetings never list a full account of what will be discussed during the meetings, so citizens often do not know if there is anything that will interest them in order to attend. This has been protested by press members for many years.