San Juan County Policy Regarding - Colorado



San Juan County Policy Regarding

Open Records Request

This Policy is hereby adopted by the San Juan County Board of County Commissioners in order to regulate and ensure the uniformity of the County’s response to all requests for information under the Colorado Open Records Act (“CORA”).

The Board of County Commissioners hereby finds the following facts:

A. The number of requests for information under “CORA” received by County offices has increased significantly over the last few years;

B. Because most County offices have at most one or two individuals working in them, responding to CORA requests can result in considerable burden on County personnel, requiring that they take time from their regular statutory or constitutional duties in order to timely respond to CORA requests. While the County recognizes the legal obligation to timely respond to CORA requests, responding to open records act requests cannot be permitted to interfere with the ordinary functioning of County offices;

C. Few, if any, CORA requests received by the County are made by County taxpayers or residents. Most such requests have come from interest groups having no presence in San Juan County. Many are blanket requests made generally to large groups such as all county or local governments. In the view of the Board, it is unfair for the taxpayers of San Juan County to be required to shoulder the financial burden of responding to CORA requests not made by them or to deprive the taxpayers of San Juan County of the regular County services for which they pay in order to assemble information in response to CORA requests. Instead, the Board believes that, consistent with state law, those who make records requests (and thus derive any benefit from such requests) should bear the full cost of responding to their requests.

Based upon the foregoing findings of fact, the Board hereby adopts this policy regarding the handling of CORA requests.

1. Purpose of Policy: The purpose of this policy is to ensure compliance with the Colorado Open Records Act in a manner which causes the least impact on the County’s severely constrained budget and which avoids interference with the operation of County offices and, to the greatest expense possible, avoids burdening the taxpayers of San Juan County.

2. Handling of Open Records Act requests:

A. All requests for information under CORA must be made in writing in order to avoid confusion as to the nature of the information being requested. If a verbal request for information under CORA is made to any County personnel, the requesting party must be politely asked by the County personnel to whom the request is directed to put the request in writing so as to ensure that the County knows exactly what information is being requested. No particular form of writing is required as long as the request clearly identifies what information is being sought.

B. Because of the very short time limits within which state law requires that the County respond to CORA requests, and further given the substantial liability to which the County may be exposed due to a failure to timely respond to CORA requests, whenever any County personnel receives any request for information under CORA, they shall immediately notify the County Administrator of the request. Immediate notification generally will be notification within no more than one hour of the receipt of the request. Such notification shall be in person, if the County Administrator is available, or if the County Administrator is not immediately available, shall be by telephone call with a confirming email addressed to the County Administrator. The County Administrator shall be provided a copy of any written request for information at the time he or she is notified of the request.

C. The County Administrator, together with the elected official or records custodian to whom a request for information is directed (if applicable), shall confer immediately following notification of the County Administrator of the request and shall jointly determine whether it is necessary to contact the County Attorney for guidance regarding the request for information. If the County Attorney is to be contacted, the contact shall be by telephone and by confirming email and a copy of any written request shall be given to the County Attorney as soon as possible but in any event within twenty four hours of the receipt of the request.

D. Responses to all CORA requests shall be made by the County Administrator on behalf of the County.

E. In responding to any request for information under CORA, it shall be mandatory County policy that the requesting party shall bear all costs associated with responding to the request. Rather than expend County resources locating, copying and mailing County records to requesting parties, County records generally will be made available for inspection in their original state and for copying, if desired, at the County courthouse all at the requester’s sole cost. In order to prevent tampering with, or damage to, County records, a County employee or representative shall be required to be present to observe the inspection and copying of County records at all times that any County records are in the possession of the requester. All records/documents being researched or inspected must be retrieved by County personnel and returned to the files in the same order as when they were removed. Authorization to inspect records may be withheld at the sole discretion of the custodian of the records, for any valid reasons including, but not limited to inability to provide supervision adequate to protect the records, the existence of confidential/nondisclosable information, the need for access to the records by others, or demonstrable concern that permitting inspection with disrupt the organization of the records or the required operation of the County office where the records would be produced. No decision to deny authorization to inspect records shall be made without consulting both the County Administrator and the County Attorney. Whenever a decision is made to deny authorization to inspect records, the requesting party shall be advised that it will not be permitted to inspect the records but that appropriate arrangements will be made to provide copies of the requested materials upon payment by the requester of the estimated cost of retrieving, copying and transmitting such records.

F. If for any reason, it is impractical for records to be made available for inspection and copying at the County courthouse, or in all cases where inspection of actual County records in place is prohibited, the County Administrator is hereby authorized to permit the retrieval, copying and transmittal of such copies to a requester provided that the requesting party shall be required to prepay the entire estimated cost of providing any requested information. Such costs shall be estimated by the County Administrator, in consultation with the County official to whom the request was directed, by first attempting to determine how long it likely will take for either County personnel or contract labor to identify, locate, retrieve, copy and transmit the requested information. The estimated time necessary to comply with the request shall then be multiplied by the burdened hourly rate of such employee or contractor (effective hourly wage plus all benefits, taxes and other costs born by the County including an attributed hourly rate for paid vacation or sick days). Copying charges at twenty-five cents per page shall be assessed in addition to any labor costs assessed pursuant to the foregoing sentence. Requesting parties also will be charged for any time expended by the County Administrator or County Attorney in connection with responding to the request. The requesting party shall be notified in writing of the County’s estimate of the cost of complying with the request and shall be advised that the County will begin gathering the requested data only after receiving payment in full of the estimated cost. In order to ensure that the County actually collects all costs of complying with a CORA request, in the event the actual cost of responding to the request is greater than the estimate, the requesting party shall be advised of the additional cost before any materials are released to the requester. Payment of such additional cost beyond the estimated charges already paid shall be required before the County provides the requested information. If the actual costs of responding to the request are less than the estimated cost which the requester has tendered to the County, the County shall refund the unused balance of the prepayment of estimated costs when the County provides the requested information to the requester.

G. In general, the County is not required to create any document or record or compilation which does not already exist and it is County policy not to create any document in response to a CORA request but only to provide access to documentation which already exists.

3. Governing law and authority:

In order to assist County personnel in understanding their obligations under CORA, the following statutory definitions and requirements shall apply to all CORA requests made to San Juan County.

Pursuant to C.R.S. §24-72-202(6) and 24-80-101(1) “records” mean all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by any governmental agency in pursuance of law for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedure, operations, or other activities of the government or because of the value of the official governmental data contained therein. County emails – except for communications with legal counsel and work product - generally are considered public records.

All books, papers, maps, photographs, cards, tapes, recordings, correspondence, digitally stored data, and other documentary materials, regardless of physical form or characteristics, held by any local government for use in the exercise of its functions or involving the receipt or expenditure of public funds are public record pursuant to C.R.S. § 24-72-201, subject to the exceptions as stated in that section. Such public records are subject to public inspection and/or copies as set forth in C.R.S. § 24-72-203 and as specifically set forth herein.

C.R.S. § 24-6-402(2)(d)(II) requires minutes to be taken at any open meeting of the local public body at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or could occur. The written minutes are public record and must be made available for public inspection. Pursuant to C.R.S. § 30-10-402 and C.R.S. § 30-10-405, the San Juan County Clerk is the “Clerk to the Board of County Commissioners” and official minutes will be maintained in that office. Additionally, the written minutes of each regular meeting are approved by the Board. Any recordings of executive sessions, which may or may not be made depending upon the subject matter of the session and statutory requirements, will be retained for the minimum time provided by law, presently ninety days. Recordings of any public Commissioner meeting will be retained for one year.

The “custodian” means and includes the official custodian or any authorized person having personal custody and control of the public records in questions; and it is the responsibility of each department and office to know which records produced by or received by that department or office are considered to be public record.

C.R.S. § 24-72-203 generally requires that, within three (3) working days of receiving a CORA request, the custodian will make the records available for inspection or provide written notice of extenuating circumstances to the person requesting the information as to the length of time that will be needed to compile the information (but in no case shall the time exceed 7 calendar days) and the approximate cost of doing so.

C.R.S. § 24-72-203(1) and 205 allow the County to make reasonable rules regarding requests for information under CORA and to charge a requester for the actual cost to San Juan County of responding to a CORA request. As stated above, County policy is to charge the full cost of responding to any request made under CORA.

Generally speaking, the following kinds of records are public:

• Records of any official actions taken by elected officials during public meetings including minutes, tapes, exhibits, resolutions, agreements, contracts, reports, etc.

• All documents related to the expenditure of public funds

• Applications for employment and employment agreements

• Minutes of meetings of any county advisory board, committees and commissions

• Incoming and outgoing correspondence to staff in which County business is discussed

• Correspondence of Elected Officials, except to the extent that such correspondence is a work product; without a demonstrable connection to the exercise of function required or authorized by law or administrative rule and does not involve the receipt or expenditure of public funds and also except for a communication from a constituent to an Elected Official that clearly implies by its nature of content that the constituent expects that it is confidential or a communication from a constituent, subject to nondisclosure as required by C.R.S. § 24-72-201(1)

• Voter and election information, recorded documents, maps, property assessment information and documentation, taxation documentation and information.

The following records are not public records:

• Certain criminal justice records as set forth in C.R.S. § 24-72-301, et. seq.

• Records the disclosure of which would be contrary to any state or federal statute or regulations

• Social Security numbers listed in voter records

• Military records filed with the County Clerk & Recorder’s Office concerning a member of the military’s separation from military service, including the form DD214. This applies to all documents recorded after July 1, 2002 but is allowable by law to grandfather in all past recordings of military documents. If the member of the military about whom the record concerns is deceased, the custodian shall allow the right of inspection to the member’s parents, siblings, widow or widower and children.

• Work product prepared for elected officials. Work product means and includes all intra or inter-agency advisory or deliberative materials assembled for the benefit of elected officials in the performance of their official duties, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials in reaching a decision within the scope of their authority. Such materials include: decisions; preliminary drafts and discussion copies of documents. Correspondence, reports and any other communication between staff, other agencies, consultants and/or other preparatory work for any report or recommendation to an elected official is considered to be a work product. Work product does not include: Any final version of a document that expresses a final decision by an elected official; any final version of a fiscal or performance aptitude report or similar document the purpose of which is to investigate, track or account for the operation or management of a public entity or the expenditure of public money, together with the final version of any supporting material attached to such final report or document; any final accounting or final financial record or report; any materials that would otherwise constitute work product of such materials which are produced and distributed in a public meeting or cited and identified in the text of the final version of a document that expresses a decision by an elected official.

• Personnel files (except applications, employment agreements and performance ratings)

• Medical, psychological, sociological and certain scholastic achievement data

• Real estate appraisals

• Legal reports and advice

• Motor Vehicle Records

• Privileged, confidential commercial data; and

• Communications from constituents which contain clear evidence that they were intended to be kept confidential

These lists are not exhaustive; therefore, if there is any question about whether or not certain records are public information, the custodian shall consult with the county attorney. The official custodian in each department and office is also responsible to retain, archive and/or purge records in accordance with the department’s or office’s retention schedule from the Colorado State Archivist.

Additional information concerning this policy may be obtained from the County Administrator or the County Attorney.

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