CO Appeals Court Holds It was An Abuse of Discretion to Deny Access to Records of Code Enforcement Officer

The Pitkin County Attorney’s Office received a citizen complaint regarding a potential code violation on Shook’s property. As a result, the Pitkin County Code Enforcement Officer, Carrington Brown, investigated the complaint and issued a notice of violation to Shook after determining that she had not obtained a necessary construction permit. Shook cured the violation by obtaining a permit shortly thereafter. Months later Shook submitted a Colorado Open Records Act (CORA) request to the county attorney (custodian) seeking access to records related to the violation. The custodian provided some documents in response to Shook’s request, but denied access to (1) the original citizen complaint, which included the name and phone number of the complainant; and (2) Brown’s handwritten notes. Shook then filed this action seeking a declaratory judgment that the custodian violated CORA by withholding the records. Following a hearing, the district court held that the custodian properly denied access to the records under CORA’s investigatory records exception, section 24–72–204(2)(a)(I), C.R.S.2014.

CORA’s exception for investigatory records allows a custodian to withhold records if: the records relate to investigations conducted by a sheriff, prosecuting attorney, or police department, or are contained in investigatory files compiled for criminal law enforcement purposes; and disclosure would be contrary to the public interest. Here, the testimony at the hearing suggested the purpose of the investigation was to determine whether Shook had violated the land use code and, if so, to bring her back into compliance. Because nothing in the record suggested that the county attorney investigated Shook’s violation for the purpose of a criminal prosecution, the court concluded the district court abused its discretion when it found that the county attorney was a “prosecuting attorney” within the meaning of the investigatory records exception. Accordingly, the order was reversed and remanded with directions to order the custodian to allow Shook to inspect the records and, upon Shook’s application, assess and award reasonable court costs and reasonable attorney fees in her favor.

Shook v Pitkin County Board of County Commissioners, 2015 WL 3776876 (CO App. 6/18/2015)

The opinion can be accessed at: https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA0671-PD.pdf