colorado-open-records-act-cora

Colorado Open Records Act - "CORA"

What is a public record?

The definition of "public records" found in CORA is quite expansive and applies to virtually

all levels and types of governments in Colorado, except for the federal government and tribal

governments. It includes all writings, books, papers, photographs, tape recordings, and

electronic mail made, maintained, or kept by the state, any agency, institution, or political

subdivision of the state, and any elected or appointed public official for use in the exercise of

functions required or authorized by law or involving the receipt or expenditure of public

funds. There are some exceptions, including communications that are personal in nature,

confidential messages from constituents about a matter relating to that constituent, and work

product, including documents relating to the drafting of bills. However, as a general rule, any

person who may be subject to the open records law should err on the side of considering all

communications to be potentially releasable, including records kept on a personally owned,

private device.

Who may request inspection of a public record?

CORA says that "any person" may inspect public records. "Person" includes any natural

person, as well as corporations, limited liability companies, partnerships, and associations.

Who is a "custodian" of a public record?

CORA broadly defines a "custodian" as the official custodian or any authorized person who

has personal custody and control of a public record. Depending on the record in question,

the custodian may be a defined person or a government agency or department. For the

General Assembly, each legislator is the custodian of the legislator's own records. Each

legislative staff member is the custodian of the staff member's own records, except for the

nonpartisan staff of the following legislative branch agencies: The Joint Budget Committee,

Legislative Council, Office of Legislative Legal Services, Office of the State Auditor,

Colorado House of Representatives, and Colorado Senate.

This summary contains information commonly requested from the Office of Legislative Legal Services. It

does not represent an official legal opinion of the General Assembly or the state of Colorado and does not

bind the members of the General Assembly. It is intended to provide a general overview of Colorado law as

of the date of its preparation. Any person needing legal advice should consult his or her own lawyer and

should not rely on the information in this memorandum.

LAW SUMMARY

Office of Legislative Legal Services

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How long does a custodian of a public record have to make it available for

inspection?

CORA mandates a quick turnaround time for records requests. The law says that records

must be made available for inspection within three business days after receipt of the request.

This three-day period can be extended for an additional seven days in cases of extenuating

circumstances, such as when a request to a legislator arrives during the legislative session.

When may inspection of a public record be denied?

A custodian of a public record must allow the inspection of the record unless a specific

ground for denial set out in CORA exists. These include cases where the inspection would

be contrary to state or federal statute or federal regulation or is prohibited by court order.

Certain records may be kept from inspection on the ground that disclosure would be

contrary to the public interest. These include records of investigative files kept by law

enforcement and others, licensing examinations scores, and electronic mail addresses,

telephone numbers, or home addresses provided by a person to an elected official, state

agency, or political subdivision. Please see the attached table reflecting CORA's exceptions,

exemptions, and extensions.

May a custodian of a public record charge a fee for inspection of the record?

A custodian may charge a fee of not more than $0.25 per standard page for a printed copy of

a public record or a fee of not more than the actual cost of providing a copy, printout, or

photograph of the record in a format other than a standard page. A custodian shall not

charge a per-page fee for providing records in a digital or electronic format. If a fee for a

certified copy or other copy of a record is specifically established in law, the specific fee

applies. No transmission fee may be charged for transmitting public records via electronic

mail.

If the custodian has posted on the custodian's website, or otherwise published, a written

policy that specifies the conditions related to the research and retrieval of public records by

the custodian, including the amount of any fees, the custodian may charge a nominal fee per

hour for research and retrieval time after the first hour. Before completing a request that will

take more than one hour of research and retrieval time, the custodian may require the

requestor to pay a deposit equal to the estimated staff time needed to comply with the

request. If the actual time spent turns out to be more or less than the initial estimate, the

custodian may require an additional payment or make a partial refund of the deposit,

respectively.

If a custodian allows members of the public to pay for any other service or product provided

by the custodian with a credit card or electronic payment, the custodian must allow a

requester of public records to pay any fee or deposit associated with the open records

request with a credit card or via an electronic payment. The custodian may require a

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requester to pay any service charge or fee imposed by the processor of a credit card or

electronic payment.

How long must a custodian maintain a public record, including electronic mail?

CORA does not contain a specific requirement regarding the length of time a custodian

must maintain a public record. Custodians and agencies can make their own determination

of the appropriate length of time a record must be kept or archived. For example, the policy

adopted by the Colorado General Assembly recommends the deletion of electronic mail

messages within 30 days in most circumstances.

On or before January 1, 2024, each member of the General Assembly, the governor’s office

and each office of the governor, and each state agency and institution is required to submit a

report to the staff of the Legislative Council of the General Assembly outlining its respective

electronic mail retention policy. The members of the General Assembly are permitted to

submit individual reports or may submit a report that specifies the electronic mail retention

policies of multiple members of the General Assembly.

What is the penalty for violating CORA?

If a court determines that a custodian of a public record has improperly denied the right of

inspection of a public record under CORA, the court must award court costs and reasonable

attorney fees to the prevailing party.

Section 24-72-206, C.R.S., formerly specified a misdemeanor penalty - punishable by a fine

of not more than $100, imprisonment in county jail for not more than 90 days, or both - for

willfully and knowingly violating CORA. But that statutory provision was repealed in 2017.

How can the General Assembly's CORA policies be accessed?

The General Assembly’s policies related to public records and email can be found at:

https://leg.colorado.gov/sites/default/files/ga_open_records_policies.pdf

LAST REVISED: 12/04/2023

S:\Public\Lls\MEMOS\Law Summaries\colorado-open-records-act-cora.docx

CORA – Common Exceptions, Exclusions, & Extensions

Correspondence:

CORA excludes

the correspondence of elected

officials from the definition of

"public records" to the extent that

such correspondence is:

Exclusions from the definition of

"public records": CORA

specifically excludes the following

[Section 24-72-202 (6)(b), C.R.S.]:

Exceptions to Inspection

Custodian's Discretion: The

custodian of records may deny

inspection of the following public

records, on the ground that

disclosure would be contrary to the

public interest [Section 24-72-204

(2)(a),C.R.S.]:

Excep

tions to Inspection

Mandatory: CORA requires the

custodian to deny inspection of

several categories of public records,

other than to the person in interest,

including [Section 24-72-204 (3)(a),

C.R.S.]:

Records must be available for

inspection within 3 working days

or less unless 7-day extension applies

for extenuating circumstances, which

includes the following [Section 24-72-

203 (3)(b), C.R.S.]:

●

Work product;

● Without a demonstrable

connection to the exercise of

functions required or authorized by

law or administrative rule and does

not involve the receipt or expenditure

of public funds;

● A communication from a

constituent to an elected official that

clearly implies by its nature or

content that the constituent expects

that it is confidential or a

communication from the elected

official in response to such a

communication from a constituent;

● Not subject to disclosure because

[Section 24-72-204 (1), C.R.S.]:

- Inspection would be contrary to

any state statute;

- Inspection would be contrary to

federal statute or regulation;

- Inspection is prohibited by

Supreme Court rules or the order of

any court; or

- Inspection would be contrary to

the legislative joint rule on lobbying

practices.

●

Criminal justice records covered by

section 24-72-301, et seq., C.R.S.;

● Work product prepared for elected

officials, except for work product

released by elected officials;

● Data, information, and records

relating to CollegeInvest programs;

● Confidential materials received,

made, or kept by a crime victim

compensation board or a district

attorney;

● Notification of a possible

nonaccidental fire loss or fraudulent

insurance act;

● Certain records of institutions,

institutionally related foundations,

institutionally related health-care

foundations, and institutionally

related real estate foundations;

● The information security plan of a

public agency, the department of

higher education, or an institution of

higher education;

● Information security incident

reports; or

● Information security audit and

assessment reports.

●

Law enforcement investigations,

intelligence information, or security

procedures;

● Test questions and examination

data related to licensing, employment,

or academic examinations;

● Specific details of bona fide

research projects by state institutions

and legislative staff;

● Real estate appraisals for the state

or a political subdivision until title to

the property passes;

● Records related to the Colorado

department of transportation's bid

analysis and management system;

● State department of revenue

records identifying persons;

● E-mail addresses, telephone

numbers, and home addresses

provided by persons for the purpose

of future electronic communications

to the person from an agency,

institution, or political subdivision;

● Certain records relating to security

arrangements or investigations; and

● Records of civil or administrative

investigations.

●

Personnel files, except

"applications and performance

ratings". "Personnel files" means and

includes home addresses, telephone

numbers, financial information, the

specific date of an educator's absence

from work, and other information

maintained because of the employer-

employee relationship, and other

documents specifically exempt from

disclosure by law.

● Letters of reference;

● Trade secrets, privileged

information, and other confidential

commercial or financial data,

including public records covered by

attorney-client or work product

privileges;

● Records of sexual harassment

complaints and investigations, with

certain exceptions;

● Records protected under the

common law governmental or

"deliberative process" privilege if

public disclosure is likely to stifle

honest and frank discussion within

the government, unless the privilege

has been waived;

● Addresses and telephone numbers

of students in any public elementary

or secondary school; and

● Public inspection of ballots under

certain circumstances. [Section 24-72-

205.5, C.R.S.]

●

A broadly stated request is made

that encompasses all or substantially

all of a large category of records and

the request is without sufficient

specificity to allow the custodian

reasonably to prepare or gather the

records within the 3-day period;

● A broadly stated request is made

that encompasses all or substantially

all of a large category of records and

the agency is unable to provide the

records within the 3-day period

because:

- The agency needs to devote all or

substantially all of its resources to

meeting an impending deadline or

period of peak demand that is either

unique or not predicted to recur

more frequently than once a month;

- In the case of the General

Assembly or its staff or service

agencies, the General Assembly is in

session; or

● A request involves such a large

volume of records that the custodian

cannot reasonably provide the

records within the 3-day period

without substantially interfering with

the custodian's obligation to perform

other public service responsibilities.