Colorado judges are once again blocking the public from seeing court documents – this time through a state law created in 1978.
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The Freedom of Information Act of 1966—better known as FOI—is one of the nation’s most famous laws. It’s the sort of thing that gets you a phone call from an appeals court judge shouting at you to pay attention to the “public’s right to know.” But last week, Colorado courts started blocking local prosecutors, judges, and police departments from making public certain court documents, and some Coloradans are saying there are some pretty big questions about the laws underlying them.
One of those is why the state refuses to give the public other records in some cases while giving them access to other ones. Earlier this month, the state’s Court of Appeals decided to keep Colorado law enforcement barred from giving a local newspaper a list of gun buyers who have background checks—after the newspaper had uncovered the exact same data before. Of course, the biggest amendment to the FOI law in Colorado, passed in 1978, doesn’t require these kinds of releases at all—but isn’t saying anything of the sort. That law basically prohibits the public from reading certain court papers—but leaves open the door for the state’s legislators and courts to keep almost all public records secret.
In a letter to the Court of Appeals, the state’s attorney general has argued that this part of the law is being applied too loosely—as more and more people are being driven to dismiss the notion of “open court” (just like everyone else in the land).
The statute that prosecutors and the police department have been invoking since August 2014, since an appeals court ruled that their records are exempt from access under Colorado’s FOI law, which generally guarantees public access to public records, came about as a result of more one-sided grievances against a previous FOI law than anything else. Amendment 37, passed by Coloradans in 2006, was intended to make courts—rather than prosecutors—responsible for releasing public documents. The purpose was to cut down on what the National Freedom of Information Coalition has called “leak investigation by rumor.”
Among other things, Amendment 37 states that “any court, bench or magistrate” shall order that, where there is no immediate risk of harm by disclosure, it be disclosed to the public in “reasonable, or anticipated, circumstances.” Amendment 37 was a byproduct of complaints filed against some local courts and sheriffs. For the most part, those complaints—which could claim improper prosecution practices—were dismissed at the next available court hearing. The general belief was that there was no clear public interest in getting access to those particular complaints, and therefore, the courts were not following proper procedure and should have been calling on the state’s district attorneys for input. Amendment 37’s purpose was also to give the state legislature an outlet for tussling with individual counties about which forms of judicial procedures were best—the legislature ultimately approved Amendment 37 by an overwhelming margin, creating new local counties and giving the legislature more power to oversee the workings of those counties.
Many of Amendment 37’s provisions now seem to be being used by Colorado’s prosecutors and law enforcement agencies to shield documents that are clearly—and demonstrably—ready for public disclosure. No one can plausibly think that many cities and counties need to keep lists of gun buyers’ concealed-carry permits because any government or sheriff’s office’s database is public. And virtually all of Amendment 37’s newer portions make it impossible to turn over documents without a judge’s permission.
The state’s attorney general has argued that the 1977 constitutional amendment to “name the General Assembly” in charge of deciding what the legislature, circuit and district court judges, and state police officers should do in regards to allowing the public to read certain court documents—has held up a “borderline fantasy” regarding the actions of state and local officials. He may be right. It is possible that we should be having more discussion about what these new sections of Amendment 37 really say. But given the fact that they’re are designed to protect law enforcement and prosecutors from undue scrutiny, it seems to me that they’re going about things the wrong way.
Read the rest at Fusion.