Earlier this year, Mayor Steve Bach's administration began charging citizens and media for public records, citing "voluminous and frivolous" requests that allegedly cost Colorado Springs taxpayers more than $200,000 in staff time in 2012. In the almost seven months since that policy change, the city's costs have dropped to less than $6,000, while citizens and media have paid about $1,400.
But that financial "win" for administrators raises questions for Luis Toro, director of the nonprofit watchdog group Colorado Ethics Watch.
For one thing, the small 2013 numbers could mean the city's 2012 figure was inflated. (City chief communications officer Cindy Aubrey says the $200,000 figure came from the City Attorney's Office based on employee timesheets, but she was unable to provide documentation before deadline.)
Or, Toro says, they could mean the fees have discouraged people from seeking records. For one thing, city officials have said people are entitled to a free estimate on their requests, and they insist that remains true. But Toro notes that the city's online form asked him to promise to pay before he knew how much he'd be paying.
"If you're telling people you're going to charge them, and they have to agree to pay in advance, of course that's going to deter them from asking," he says. "That's completely unreasonable. Nobody wants to write a blank check."
In mid-February, the city adopted fees of 25 cents per page and $20 per hour for search and retrieval, which are allowed in the open records statute. The first 25 pages and two hours' time spent by staff are free.
While El Paso County charges only for "very large" requests, according to county spokesman Dave Rose, City Attorney Chris Melcher said at the time that the Springs was merely following its Front Range peers in enacting fees.
In a Feb. 17 op-ed piece in the Gazette, Aubrey justified the charges like this: "Certain print media reporters have been particularly overreaching in their requests, including one who requested all of the documents that we had previously given to a rival print reporter. In addition, there have been CORA requests resulting in hundreds of printed pages — never to be picked up by the requesting reporter."
Both cases involved Gazette reporters, Aubrey says.
But the Independent, too, requests records regularly. The Indy's March 6 story about legal opinions and contracts issued under Melcher's watch ("Chris cross," cover story) required more than 1,000 pages of records. Had the fees been in place at the time of our request, we would have been charged $919.37, the city informed us "for future reference."
The fee schedule kicked in Feb. 7. From that day through Aug. 27, the city has fielded 133 requests, according to documents provided by the city.
Of those, 20 have carried a combined price tag of $1,379.25. Another 10 were assigned estimates that totaled $1,405.25, but the requesters didn't pay. The other 103 requests were provided without charge, because they didn't exceed the free two hours and 25 pages.
All told, the city's unreimbursed cost this year is $5,563.75, assuming all 103 free requests took the maximum hours and pages.
In July, Toro tried to file a records request on the city's website and, after he refused to pay the as-yet-undetermined amount, saw his request rejected. "I think it's illegal," he says.
Chris Beall, legal counsel for the Colorado Press Association, agrees, noting an agency can deny a request only by citing a provision of the statute that permits a record to be shielded from disclosure. "If they simply reject a request because you click 'no,' there is no reference to the statute," he says.
In a statement, the City Attorney's Office countered Toro's claim: "We do not 'reject' requests based on nonpayment of 1/2 of the estimate." But Toro can produce the e-mailed rejection, which states, "'No' is not a valid choice for Fieldname 'I Agree.' Valid choices are: Yes. Please resubmit your issue/problem with the correct information."
Instead, Toro sent his request — for all correspondence between the city and the Sky Sox organization regarding the city's plan to build a downtown baseball stadium— through the mail. The city didn't end up charging him anything, because it claimed there were no such records.
Other requesters, including Rocky Mountain Materials and Asphalt ($200), attorney Murray Weiner ($115) and other media, have paid various amounts in the last seven months.
Weiner says it's fair for the government to charge a fee to discourage abuse, as long as it's reasonable. He sees his charges as part of the cost of doing business.
But as Beall sees it, agencies themselves should view CORAs as the "cost of doing business" and not charge. He and Toro agree it's unpalatable to pay for records already deemed as belonging to citizens.
"The whole idea of democracy is, you have to know what your government is doing so you can evaluate its performance," Toro says. "They [city] should budget $200,000 for CORA requests, because it's part of their job."
But on Aug. 15, the Colorado Court of Appeals made a decision that could actually embolden other agencies to up the ante: It upheld an Arapahoe County special district's right to charge a constituent $16,025 for retrieval and attorney review of records.
"It cries out for a legislative response," Toro says. "We're definitely going to call upon the Legislature to spell out what fees are permissible."
But the government is a powerful lobbyist. As Beall says, "The argument is they are overwhelmed by requests, and they have limited resources. That argument has, by and large, fallen on responsive ears in a majority of legislators."