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Judicial Watch • 2011 jw-v-cora-order-04222011

2011 jw-v-cora-order-04222011

2011 jw-v-cora-order-04222011

Page 1: 2011 jw-v-cora-order-04222011


Number of Pages:9

Date Created:May 31, 2013

Date Uploaded to the Library:July 30, 2013

Tags:purpose, concerns, directive, specifically, judiciary, rules, subject, courts, chief, Administration, access, public, investigation, information, Supreme, Attorney, Counsel, documents, justice, watch, thomas, State, judicial, board, request, records, Supreme Court, department, court, EPA, IRS, ICE, CIA

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1437 Bannock Street Denver, 80202 
Applicant: JOHN GLEASON, his official capacity Supreme Court Regulation Counsel COURT USE ONLY  
Interested Party: JUDICIAL WATCH, INC.  Case Number: 2010 8996; Consolidated with 2010 9052  
Courtroom: 414  


Before the Court issue apparent first impression arising from unusual 

circumstances. The issue whether the Colorado Open Records Act ("CORA"), C.R.S. section 24-72-200.1, seq., applies administrative and billing records maintained John Gleason, the Attorney Regulation Counsel ("ARC"), and his Office. The unusual circumstances are Mr. Gleason's appointment March 2010 former Chief Justice Mullarkey -upon the request/order the Arizona Supreme Court -as independent counsel investigate allegations misconduct against Maricopa County Attorney Andrew Thomas. Mr. Gleason's investigation recently resulted ethics complaint issued Mr. Thomas and two other Arizona attorneys. 
The CORA request was made Judicial Watch, non-profit, "government watch-dog" entity. (The quoted language the Court's description, and not that Judicial Watch.) Through the course these proceedings, Judicial Watch reiterated (in its view), clarified (in the ARC's view), that not seeking the work product other materials the ARC generated the Arizona investigation, with the possible exception the ARC's billing records. Instead, Judicial Watch requested, essence, any internal administrative records leading to, authorizing, resulting Mr. Gleason's appointment, well subsequent non-investigatory communications regarding his absence from Colorado while conducting the Arizona investigation. Thus, the ARC's initial assertion that the records question are subject Arizona law, rather than CORA, based misapprehension the requests. Judicial Watch also seeks billing records (including documents showing payments) for the ARC' work Arizona; payments went the Office the Attorney Regulation Counsel, and not Mr. Gleason personally. 
While party's motivation seeking records generally irrelevant determining right inspection, apparent that, minimum, Judicial Watch questions the use one state's resources (here, the person Mr. Gleason and his staff), assist another state politically-charged ethics probe. Further, this time state budget shortfalls, the people this State doubt would interested how came that state employee was ordered work for another jurisdiction and whether Colorado was adequately reimbursed for that work. CORA 
The parties dispute the applicability CORA the present facts. Although the current issue one first impression, Colorado courts have had ample opportunity interpret CORA generally, finding that (1) the absence specific statutory exception permitting the withholding information, public official has authority deny any person access public records, Denver Publishing Co. Dreyfes, 520 P.2d 104, 109 (Colo. 1974); and (2) there general presumption favor public access government documents, exceptions which must narrowly construed, Daniels City Commerce City, 988 P.2d 648, 651 (Colo. App. 1999). 
Despite this, the parties disagree about whether the documents Judicial Watch requested are "public records" accessible via CORA request. Pursuant CORA, "'[p]ublic records' means and includes all writings made, maintained, kept the state, [or] any agency .... C.R.S.  24-72-202(6)(a)(I). While the Office the Attorney Regulation Counsel may not "agency, unquestionably part "the state," and Mr. Gleason state employee. Thus, records maintained Mr. Gleason his official capacity would appear subject CORA. And, appears beyond dispute that similar request had been directed the executive legislative branch regarding State employee directed assist sister state, the documents would "public records" subject CORA. The only issue then would whether exception inspection might applicable. Yet, because Mr. Gleason and the Office Attorney Regnlation Counsel are part the judicial branch, and more specifically because the position the ARC was created and established through the rule-making authority the Supreme Court, see Rule 25i.3, the ARC argues that records his possession are not subject CORA 
Although nothing CORA specifically exempts the judiciary and its records from inspection requirements, CORA does refer the Supreme Court's power limit access: "the custodian any public records shall allow any person the right inspection ... 
except [when] such inspection prohibited rules promulgated the supreme court 
... C.R.S.  24-72-204(1)(c) (emphasis added). The ARC argues, essence, that this language allows the Supreme Court, through rulemaking, exempt the entire judicial branch from CORA's reach. Given CORA's general presumption favor public access government documents, however, not clear why section 204(1)(c) should interpreted broadly. Nevertheless, fair say that the mere language and general purpose CORA not end the inquiry whether CORA applies the ARC, 
First, the ARC cites Office State Court Administrator Background Info. Services, 
994 P.2d 420 (Colo. 1999) [hereinafter BIS], for the proposition that judicial records 
(such those held the ARC) can inspected only the General Assembly has 
enacted statute that specifically refers identifiable records the judiciary, which 
has not done this case. According the ARC, BIS reverses CORA's presumption 
access with respect judicial records, i.e., unless otherwise clearly defined public 
record, judicial materials are not accessible. 
Second, the ARC argues that "all records and materials the Judicial Branch are exempt from requirements and procedures [CORA]," because "C.R.C.P. chap. 38, Rule sets the general standards for public access records and information held the Judicial Department." Furthermore, "Rule also effectively removed all records and materials the judicial branch from the scope [CORA]." Therefore, "the [ARC's] records and materials can inspected and copied only under the auspices Rule and the applicable Chief Justice Directives." And, according the ARC, neither those allow for Judicial Watch inspect the ARC's records. 
Third, the ARC argues that Chief Justice Directive 05-01 "allows only the release 
court records," and, since the definition of"[ c]ourt records does not include other 
records maintained the Judicial Branch," the records sought Judicial Watch 
"cannot released without specific authorization from the [Colorado Supreme] Court," which has not occurred. 
The Court will address each these arguments. THE APPLICABILITY THE BIS DECISION 
The ARC broadly interprets BIS holding that court rules and procedures exclusively 
govern the release all judicial records, unless the General Assembly acts with 
specificity the contrary. According the ARC, since the legislature did not explicitly 
make CORA applicable the judiciary, neither the courts nor any other part the 
Judicial Branch fall within CORA's requirements. 
This Court disagrees with the ARC's reading BIS. reaching the conclusion that "it rests within the authority the Chief Justice, acting Chief Justice Directive, direct and control the release computer-generated bulk data containing court records," 994 P.2d 431, the Supreme Court never analyzed the applicability CORA the judicial branch whole. Thus, BIS contains interpretation the language CORA, nor any rationale (such separation powers) for excluding the judiciary from CORA's reach. 
The decision must evaluated within the context the issues presented the Supreme Court. BIS enumerated three issues for decision -all which concerned whether the Court and Chief Justice acted properly pursuant CORA. Id. 425. The first issue was whether, pursuant CORA, court-adopted rule change was rule order that exempted the State Court Administrator from CORA's inspection and disclosure requirements. Id. The second issue was whether, pursuant CORA, Chief Justice Directive was rule order the Court permitting the State Court Administrator deny request for inspection, disclosure transfer bulk electronic information kept the Judicial Branch. Id. The third issue was whether CORA mandates that custodian records manipulate record form not ordinarily used the department agency, response request for inspection disclosure records. Id. true that, addressing these issues, the Court concluded, "the courts are not included public agencies for all purposes under [CORA]." Id. 431. But, reaching that conclusion, the Court was addressing concerns that make its holding limited value here. First, the decision emphasized that the courts are not included public agencies under CORA. Here, the ARC does not qualify "court." 
Second, the documents question here not contain the kind "very particularized 
information about individuals" that were issue BIS. Id. 422. The BIS court's 
decision was clearly influenced such privacy concerns, referring them throughout 
the decision. For instance, the court stated, "Court files can contain very private 
emotional, financial, and psychological documents, well identifying information 
such drivers license numbers, social security numbers, and addresses many the 
people who are party witness civil criminal case." Id. 429. Moreover, BIS 
involved request for the release records bulk form -significantly multiplying 
privacy concerns. Here, Judicial Watch seeking disclosure communications and 
billing statements concerning government activity-exactly the type public records 
CORA was designed make available-and which presumably not invade individual 

Finally, the BIS court determined that the General Assembly had not intended CORA apply "court records," because other laws more specifically concerned the inspection and disclosure such records. See id. 427-29 (discussing whether court records are public records for purposes CORA since they are otherwise covered specific statutes). such, the Court determined that, where the "General Assembly has not chosen act with specificity, court rules and procedures govern." Id. 429. But the Office the Attorney Regulation Counsel does not maintain exclusively "court records," and Judicial Watch has not requested "court records." Nor, shown below, has the Supreme Court developed rules and procedures addressing the kinds records issue here. Thus, this Court finds BIS inapplicable. RULE 
ARC also argues that Chapter 38, Rule the Colorado Rules Civil Procedure "sets the general standards for public access records and information held the Judicial Department" and "effectively removed all records and materials the judicial branch from the scope [CORA]." such, the ARC concludes, "all records and materials the Judicial Branch are exempt from requirements and procedures [CORA]." its face, Rule would seem support the ARC's argument. Rule was enacted "to provide the public with reasonable access Judicial Branch documents and information while protecting the privacy interests parties and persons. addition, [Rule intended provide direction Judicial Branch personnel responding public records requests." C.R.C.P. ch. 38, authorizes the Chief Justice the Colorado Supreme Comt "to issue directives regarding access the public documents and materials, made, received, maintained the courts." Id. "Such Directives ... shall govern release records the public." Id. For purposes implementation, Rule authorizes the Chief Justice "to appoint committees and assign custodians records, and designate the functions such committees and custodians records, the Chief Justice may determine." Id. Furthermore, prohibits custodians records within the judicial branch from releasing "any records material the public inconsistent with [Rule the Chief Justice Directives." Id. Finally, states that "is intended rule the Supreme Court within the meaning [CORA]." Id. 
Nevertheless, the ARC's reliance Rule suffers from flaws similar those his BIS 
argument above. First, appears the Court that Rule should interpreted 
conjunction with CORA, rather than the judiciary's separate corollary CORA. 
CORA permits the supreme court make rules limiting CORA's applicability certain 
records. See C.R.S.  24-72-204(1)(c)("the custodian any public records shall allow 
... inspection ... except [when] such inspection prohibited rules promulgated 
the supreme court"). Appropriately, Rule states that intended rule the 
supreme court within the meaning CORA. Its stated purpose provide the public 
with reasonable access Judicial Branch documents, and specifically authorizes the Chief Justice issue directives regarding access "court records" -the type judicial branch documents typically sought the public, but not issue here. Importantly, however, does not state that provides the exclusive means for access all judicial branch documents. such, Rule comports, rather than conflicts, with CORA, and there reason read Rule generally exempting the judicial branch from the requirements CORA. 

Second, like BIS, Rule specifically refers documents and materials made, received, maintained the courts, i.e., court records. This reference appears conflict with, least narrow the scope of, the Rule's earlier reference "Judicial Branch documents." such, difficult determine whether Rule was intended cover 
all judicial branch documents, only court records. this Court's view, however, given the genesis the Rule and that nowhere states provides the sole means access all other judicial branch documents, the better construction apply the 
Rule only court records. other words, the Rule does not control inspection judicial branch documents that are not "court records". 
Finally, the Rule refers concerns for "privacy interests parties and persons" -the same concerns issue BIS. The reference privacy concerns further bolsters the "court records" interpretation, because the identities of"parties and persons" primarily exist court records, not other Judicial Branch documents. 
Thus, this Court finds Rule inapplicable. CHIEF JUSTICE DIRECTIVE 05-01 
Assuming that Rule controls over CORA, the ARC argues that Chief Justice Directive 
05-01 provides public access only court records, and excludes inspection all other 
records maintained the Judicial Branch. 
Even Rule does control over CORA, and this Court has determined the contrary, the ARC's argument would still fail. The Directive explicitly states that its purpose "provide reasonable access court records while simultaneously ensuring confidentiality accordance within [sic] existing laws, policies and procedures." Chief Justice Directive 05-01, The Directive defines "court records" include (1) any document, information, other item that collected, received, maintained court clerk court connection with judicial proceeding; (2) any index, calendar, docket, register actions, official records the proceedings, order, decree, judgment, minute order, that related judicial proceeding; and (3) the electronic record (ICON/Eclipse) official court record, including the probation ICON/Eclipse files. Its purpose excluding other judicial documents from this definition for clarity, and not exempt all other records from inspection under CORA. Like the previous arguments, nothing the Directive indicates that the sole means disclosure for all judicial branch documents. Rather, the Directive concerned only with the release court records, and its exclusion other documents means such documents are not included within the Directive's purview. other words, whether such other documents are subject inspection must determined pursuant other laws, such CORA. the case with both BIS and Rule the Directive consistent with CORA, rather than conflict, and does not preclude conclusion that the ARC's documents should 
Having considered, and rejected, the ARC's arguments why CORA does not apply, this Court returns the definition "public records" contained CORA and holds that the documents sought Judicial Watch are public records subject inspection absent exception under CORA. doing so, the Court has reviewed cases from other jurisdictions, which support the Court's holding. The most analogous decisions are from New York. There, several cases decided the early 1980s, judges distinguished between documents maintained courts qua courts (i.e., "court records"), and records maintained the judiciary's administrative arms, including the Office Court Administration and Board Law Examiners. Despite the judiciary's express exclusion from New York's freedom information law, these decisions found the administrative records subject inspection. See Quirk Evans, 455 N.Y.S.2d 918, 921 (N.Y. Sup. Ct. 1982) ("The Office Court Administration, clear, agency, not court, and therefore subject the Freedom Information Law''); Pasik State Board Law Examiners, 451 N.Y.S.2d 570, 575 (N.Y. Sup. Ct. 1982) (concluding that the State Board Law Examiners not part the judiciary for FOIL purposes); Babigan Evans, 427 N.Y.S.2d 688, 689 (N.Y. Sup. Ct. 1980) (concluding that the administrative arm the court not part the judiciary and not exempt from FOIL). See also Henderson Bigelow, 982 So. 941, 951 (La. Ct. App. 2008) (holding that the public entitled inspect the records the judiciary through records request, with the exception documents that court, the exercise the inherent authority and plenary power vested the judiciary the Louisiana Constitution, determines should remain confidential). 
Although the ARC cites Arizona Court Appeals case, Arpaio Davis, 210 p.3d 1287 (Ariz. Ct. App. 2009), providing the most pertinent analysis, this Court disagrees. The Arpaio case involved situation where "[t]he Sheriff requested thousands random, unidentified electronic messages (e-mails) and documents, without regard subject matter, sent from certain individuals, within range dates ... contain[ing] other limiting criteria." Id. 1288-89. such, the court concluded, "[s]uch untargeted review would seriously impede the court's performance its core functions with discernable public benefit." Id. 1289. Here, Judicial Watch's request narrow and direct scope, raises concerns impeding court's core functions, and has discernable public benefit. Therefore, the New York and Louisiana cases cited above clearly provide the more relevant analysis. 

The Court also rejects another broad assertion made the ARC-that the Supreme Court has exclusive and plenary power over the ARC and the practice oflaw Colorado, and therefore this Court "does not have the legal authority determine the scope the Supreme Court's plenary power." This Court agrees with the general proposition and would not, for example, entertain claim that should enjoin the Supreme Court from ordering Mr. Gleason assist with investigation another state. But this assertion largely beside the point. While the Supreme Court has enacted rules governing access records investigations Colorado lawyers the ARC-see Rule 25i.31-the investigation question was not Colorado lawyer, nor any event Judicial Watch seeking investigative records. Further, the Supreme Court not party these consolidated cases, and the Deputy Attorney General, who representing the ARC, specifically informed this Court during oral argument that was not presenting the Supreme Court's position whether the records were subject inspection. such, clear that this Court not determining infringing the scope the Supreme Court's plenary powers. 
II. Exceptions 
While primarily relying the inapplicability CORA, the ARC also invokes several exceptions inspection under CORA. First, asserts that the records were compiled for law enforcement purpose. See section 24-72-204(2)(a)(I). The ARC does not explain how ethics investigation constitutes law enforcement purpose. any event, the exception would apply, best, the types investigatory records generated Arizona, which the Court agrees are beyond the reach CORA, and not those sought Judicial Watch. 
Second, citing section 24-72-204(6)(a), the ARC argues that inspection would harm the public interest. The ARC's argument once again depends his misapprehension that Judicial Watch sought records the Arizona investigation. The ARC has not shown, its burden, that disclosure the more limited records issue would harmf ul. 
Finally, with respect billing records and payments, the ARC asserts that they contain 
work product and privileged information. I-le also argues that, while the payments for 
his work went the Office the ARC (and not him individually), these amounts are 
not "public funds" referenced section 202(6)(a)(I). This Court disagrees with the 
latter, but accepts the ARC's representation regarding the former. 
While true that the Office the ARC not funded the Legislature, the funds 
question are used for public purpose-the regulation Colorado attorneys the 
Supreme Court. comparison, the Colorado Attorneys' Fund for Client Protection, established Rule 252, might not "public funds." Absent showing that payments from Arizona went this similar segregated fund with non-public purpose, this Court rejects the ARC's argument. 
However, the Court agrees that any detailed billing records from the ARC the Arizona Supreme Court should not available for inspection. First, these records are arguably outside the scope part the Arizona investigation. Second, the ethics charges have not been resolved and thus would inappropriate reveal details the ARC's investigation this time. The amount paid another matter. The ARC has not asserted that this information privileged, and inspection records reflecting payments proper under CORA, which refers not only expenditure, but also "receipt," public funds. 
Accordingly, the ARC ordered allow inspection documents requested items 1through and Judicial Watch's CORA request. This order final for appellate purposes. Any motions for costs, attorneys fees, stay shall filed within days this date. 
Dated this 22nd day April, 2011. THE COURT Bruce Jones District Court Judge