- Matthew Schniper
- Dan Wagman: Citizens get screwed.
Dan Wagman feels like he's been down the rabbit hole.
He's traveled to the Denver area several times and navigated the courts on an odyssey to exercise his rights of access to records held by the Colorado State Patrol. His six-month ordeal wound up consuming dozens of hours and costing him at least $500.
Wagman finally gained access to the records, but he wasn't given copies. Rather, he was forced to drive to the State Patrol's Lakewood headquarters, where he was charged an hourly fee for an agency worker to babysit him while he inspected the records.
Despite wording in Colorado's access laws, saying citizens should be given permission to make photocopies themselves if need be, a district judge sided with the State Patrol's decision to refuse copies.
Wagman says the saga has left him with a sour taste. "The citizen kind of gets screwed here," he says.
Wagman's story began in June 2015 when he went to a State Patrol office in Colorado Springs to have a trailer inspected. Wagman was told he could be cited after he drove up with an unregistered trailer that he'd just purchased that day. He argued, noting the law allows a 36-hour grace period after purchase. The State Patrol later agreed. He filed a complaint against the trooper who threatened to ticket him.
A State Patrol investigation of his complaint exonerated the trooper, who "acted lawfully and properly within State Patrol policy." Wagman didn't understand that conclusion, given the trooper wrongly cited the law.
He sought the investigative report, thus launching his records quest.
His first request under the Colorado Open Records Act was denied; the State Patrol claimed the reports aren't subject to CORA, but rather the police agency instead is subject to the Colorado Criminal Justice Records Act.
Under that law, wrote Kimberly Ramsey with the State Patrol's central records unit, the State Patrol may deny access to records "if disclosure would be contrary to the public interest." Not surprisingly, the State Patrol made that determination, concluding that "the harm to privacy interests of individuals and the danger of unwarranted adverse consequences outweigh the public's interest in allowing inspection."
Wagman, an ex-publisher of a sports science website, asked the State Patrol to articulate the "general nature of the public interest to be protected by the denial."
About a month later, in October, Ramsey sent him a letter saying the command staff had reviewed his request and decided to let him see the reports "in person, in paper format at CSP headquarters" in Lakewood. She added the custodian is empowered under the law to "make such rules and regulations ... as are reasonably necessary for the protection of such records." She also told him, "You may take notes and take the time you need to review the written materials related to your complaint but we request that you not make copies or photograph the records."
In addition, she advised he'd be charged $30 per hour for a staff member to be "present in an unobtrusive manner" during his records inspection.
That cost him $225 in filing fees and another $90 to serve the State Patrol and Attorney General's Office with notice of the suit. His other costs included two trips to Jefferson County — to file the case and attend a hearing. (A suit must be filed in the jurisdiction where records are located.)
In court papers, the State Patrol argued it didn't have to provide copies because the records sought weren't of "official actions" such as an arrest, indictment, sentencing and the like.
District Judge Dennis Hall sided with the State Patrol, saying the law contained "no right to photocopy records" and that the State Patrol's records custodian "placed reasonable restrictions on the records."
Wagman then went to the State Patrol headquarters and meticulously took notes from the records to re-create the reports, none of which were redacted, which begs the question of what privacy interest the State Patrol was trying to protect. He paid $90 for three hours.
Wagman isn't convinced the ruling was right. He notes the Criminal Justice Records Act allows an agency to decline making copies "if the custodian does not have facilities for making copies." But the State Patrol did have a copy machine, Wagman says. The law also says citizens "shall be granted" access to make their own copies, and he wasn't granted that access. Moreover, the law also states, "The official custodian may establish a reasonable schedule of times for making copies, printouts, or photographs..." (Emphasis added.)
How does that sit with transparency advocate, Jeff Roberts, executive director of the Colorado Freedom of Information Coalition?
He says the judge was within the letter of the law. Roberts notes that records of official action can be copied, but records that fall outside that category aren't subject to the copy rule.
"As far as transparency goes, they could have done this differently," he says, noting that a 2008 Colorado Supreme Court ruling said agencies can make records available for inspection after redacting portions to protect privacy rights. "Instead of spending money to babysit him looking through a document, they could have used that money to redact that information that shouldn't be made publicly available and then make it [the record] available."
But as Wagman notes, no records were redacted in any way. While Wagman says he feels "enlightened" by his experience, he also thinks any law that allows an agency to force citizens to come to its office to view public records isn't fair or transparent.
"What about someone in La Junta or Cortez?" he says. "You're going to have them travel for hours to look at these documents?"