Matt Roane v. Kristy Archuleta ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 15, 2022
2022COA143No. 22CA0204, Roane v. Archuleta — Government — Public
Records — Colorado Open Records Act — Public Records Open
to Inspection — Allowance or Denial of Inspection; Civil
Procedure — Disclosure and Discovery
A division of the court of appeals considers whether an
individual who is litigating against a public entity, and who did not
propound discovery requests in that litigation, has the right to
obtain relevant documents from the public entity through a records
request under the Colorado Open Records Act (CORA). The division
rejects the appellant’s contention that the Colorado Supreme
Court’s decisions in Martinelli v. District Court, 199 Colo. 163, 612
P.2d 1083 (1980), and City of Colorado Springs v. White, 967 P.2d
1042 (Colo. 1998), preclude the appellee from employing CORA to
obtain relevant documents from a public entity that is an adverse
party in pending litigation. The division holds that the lack of a
“pending litigation” exception in CORA provides further support for
its decision in this case. Accordingly, the division affirms the
district court’s inspection order.
COLORADO COURT OF APPEALS 2022COA143Court of Appeals No. 22CA0204
Archuleta County District Court No. 21CV30003
Honorable Jeffrey R. Wilson, Judge
Matt Roane,
Plaintiff-Appellee,
v.
Kristy Archuleta, in her official capacity as the Clerk and Recorder of Archuleta
County,
Defendant-Appellant.
ORDER AFFIRMED
Division A
Opinion by JUDGE LIPINSKY
Fox and Freyre, JJ., concur
Announced December 15, 2022
Matt Roane Law, Matt Roane, Pagosa Springs, Colorado, for Plaintiff-Appellee
Todd A. Weaver, County Attorney, Pagosa Springs, Colorado, for Defendant-
Appellant
¶1 This case presents the novel issue in Colorado of whether an
individual who is litigating against a public entity, and who did not
propound discovery requests in that litigation, has the right, during
the pendency of the litigation, to obtain documents relevant to the
litigation from the public entity through a records request under the
Colorado Open Records Act, §§ 24-72-200.1 to -205.5 (CORA). We
hold that, under the facts of the case, plaintiff, Matt Roane, has the
right under CORA to obtain a public record from the Archuleta
County Board of County Commissioners (the Board), despite the
pendency of Roane’s lawsuit against the Board. For this reason, we
affirm the district court’s order (the inspection order) requiring
defendant, Kristy Archuleta, in her official capacity as the Clerk and
Recorder of Archuleta County, to allow Roane to inspect the public
record he requested.
I. Background and Procedural History
¶2 Except as noted, the underlying facts are undisputed.
¶3 Roane filed a declaratory judgment action against the Board
for its alleged violation of Colorado’s open meetings statute (the
declaratory judgment case). The declaratory judgment case was
subject to the simplified procedures set forth in C.R.C.P. 16.1,
1
which require the parties to make the disclosures specified in
C.R.C.P. 16.1(k)(1) and allow the limited discovery described in
C.R.C.P. 16.1(k)(4). Under C.R.C.P. 16.1(k)(4)(B), Roane and the
Board were limited to five document requests each. But they
neither exchanged disclosures nor propounded discovery requests.
¶4 The parties filed cross-motions for summary judgment. While
the motions were pending, Roane submitted a CORA request (the
request) to Archuleta in her capacity as the Board’s custodian of
records. In the request, Roane sought a recording of a public Board
meeting (the recording) and an email and attachments concerning
the agenda for an earlier “work session” at which the Board
discussed a local medical center’s request for public funds to
purchase COVID-19 test kits. (This appeal only involves Roane’s
request for the recording.)
¶5 According to Roane, the Board did not record the substance of
its discussion of the medical center’s funding request during the
“work session” and, at the public Board meeting, made a “quick,
ceremonial” decision to fund the test kits. Roane alleged that the
Board engaged in the “substantive hard work” regarding the
funding request behind closed doors at the “work session.”
2
¶6 The parties do not dispute that the recording is a public
record, that it is relevant to the declaratory judgment case, or that
Roane did not submit the request to circumvent the limit of five
document requests specified in C.R.C.P. 16.1(k)(4)(B). Roane said
he needed the recording to obtain information for his reply in
support of his pending motion for summary judgment.
¶7 Archuleta denied Roane’s request, asserting that, under
sections 24-72-203(1) and 24-72-204(1)(c), C.R.S. 2022, the
recording was
not open to inspection as “otherwise provided
by law” pursuant to the Colorado Supreme
Court’s ruling in Martinelli [v. District
Court, 199 Colo. 163, 612 P.2d 1083 (1980)],
[the request] is “prohibited by rules
promulgated by the supreme court” pursuant
to Colorado Rule of Civil Procedure 34, and is
prohibited “by the order of any court”
pursuant to the Colorado Supreme Court’s
ruling and order in Martinelli.
¶8 After Archuleta denied the request, Roane filed a separate
action against her under section 24-72-204(5) of CORA to obtain,
among other relief, an order requiring Archuleta to “make the
[r]ecording available for . . . Roane’s inspection.”
3
¶9 The court agreed that Roane was entitled to inspect the
recording and ordered Archuleta to produce it to him. In the
inspection order, the court explained that, although Roane “could
have used the discovery process to obtain the information sought in
his CORA request, the discovery process was not his exclusive
means for obtaining such information.” The court also noted that
“nothing in the record show[ed] that any statute, rule or court order
prevented [Roane] from making” the request.
¶ 10 On appeal, Archuleta contends that the court erred because,
among other reasons, the inspection order was in “complete
contradiction to” the Colorado Supreme Court’s decisions in
Martinelli and City of Colorado Springs v. White, 967 P.2d 1042(Colo. 1998). We disagree.
II. Analysis
A. Standard of Review and
Principles of Statutory Interpretation
¶ 11 We review the construction and application of CORA de novo.
Bjornsen v. Bd. of Cnty. Comm’rs, 2019 COA 59, ¶ 39, 487 P.3d
1015, 1023. “[W]hen construing the statutory language of CORA,
we ‘. . . look first to the plain language, always striving to give effect
4
to the General Assembly’s intent and chosen legislative scheme.’”
Denver Publ’g Co. v. Bd. of Cnty. Comm’rs, 121 P.3d 190, 195 (Colo.
2005) (quoting Sooper Credit Union v. Sholar Grp. Architects, P.C.,
113 P.3d 768, 771 (Colo. 2005)). In addition, “we must give
consistent, harmonious, and sensible effect to all parts of the
statute and avoid an interpretation or construction that would
render any language meaningless” and avoid “ascrib[ing] a meaning
that would lead to an illogical or absurd result.” Yotes, Inc. v.
Indus. Claim Appeals Off., 2013 COA 124, ¶ 14, 310 P.3d 288, 291.
B. The Applicable Law
¶ 12 Our review of the legal principles underlying this case involves
four discrete steps. First, we discuss the applicable provisions of
CORA. Second, we turn to the authorities on which Archuleta’s
argument rests — two Colorado Supreme Court cases, a formal
opinion of the Colorado Attorney General, and federal cases
addressing sections of the federal Freedom of Information Act
(FOIA), 5 U.S.C. § 552, that Archuleta asserts are analogous to the
relevant sections of CORA. Third, we consider Archuleta’s public
policy arguments. Fourth, we examine decisions from other
jurisdictions that reinforce our reading of CORA.
5
1. The Scope and Meaning of CORA
¶ 13 CORA rests on the principle that “[a]ll public records shall be
open for inspection by any person at reasonable times, except as
provided [in the exceptions set forth in CORA] or as otherwise
provided by law.” § 24-72-203(1)(a) (emphasis added). The General
Assembly emphasized that any exceptions to the right of inspection
conferred under CORA must be “specifically provided by law.”
§ 24-72-201, C.R.S. 2022 (emphasis added).
¶ 14 The General Assembly’s statement of the policy underlying
CORA “clearly eliminates any requirement that a person seeking
access to public records show a special interest in [the subject]
records in order to be permitted access thereto.” Denver Publ’g Co.
v. Dreyfus, 184 Colo. 288, 292, 520 P.2d 104, 106 (1974); see also
City of Colorado Springs, 967 P.2d at 1056 (“The particular purpose
for which one seeks the public record is not relevant in determining
whether disclosure is required . . . .”).
¶ 15 Because “CORA’s clear language creates a strong presumption
in favor of disclosing records,” a court must “construe any
exceptions to CORA’s disclosure requirements narrowly.” Jefferson
Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 2016 COA 10,
6
¶ 14, 378 P.3d 835, 838. The parties agree that the only potentially
applicable CORA exception is the one referring to disclosures barred
“by rules promulgated by the supreme court or by the order of any
court.” § 24-72-204(1)(c) (exception c). Archuleta interprets the
reference to “rules promulgated by the supreme court” in exception
c to mean the Colorado Rules of Civil Procedure and interprets
“order of any court” to encompass supreme court precedent.
2. The Authorities on Which Archuleta Relies
a. The Colorado Supreme Court’s Decisions in
Martinelli and City of Colorado Springs and
Related Authorities
¶ 16 Archuleta specifically argues that Martinelli and City of
Colorado Springs hold that “open records laws cannot be used to
supplant discovery practice in civil litigation,” and that “the
[d]istrict [c]ourt created a non-existent exception” to such precedent
for cases subject to C.R.C.P. 16.1. We need not reach Archuleta’s
contention that “order of any court” in exception c means supreme
court precedent because, regardless of the language of exception c,
we must follow the supreme court’s decisions. See People v.
Robson, 80 P.3d 912, 914 (Colo. App. 2003) (“[W]e are bound by the
7
rule as expressed by the Colorado Supreme Court, and we are not
free to depart from this precedent.”).
¶ 17 We now turn to Martinelli. Contrary to Archuleta’s argument,
in that case, the supreme court held that the right to inspection of
public records granted in CORA is distinct from, rather than
mutually exclusive of, the right to obtain discovery set forth in the
Rules of Civil Procedure. See Martinelli, 199 Colo. at 177, 612 P.2d
at 1093.
¶ 18 The facts underlying Martinelli are critical to understanding
the scope of the supreme court’s statement that CORA was not
intended to “supplant discovery practice in civil litigation.” Id.
Martinelli was an original proceeding in which the Denver Police
Department and individual Denver police officers (the police
petitioners) sought to block an individual respondent from using
C.R.C.P. 34 to obtain personnel files and Staff Investigation Bureau
reports (S.I.B. reports) in the individual’s pending civil action
against the police petitioners. Id. at 167-68, 612 P.2d at 1086-87.
In that action, the individual alleged, among other things, that the
individual officers had illegally arrested and assaulted him. Id. at
167, 612 P.2d at 1086. Significantly for purposes of this case, the
8
individual had not sought the subject documents through a CORA
request.
¶ 19 So why did the supreme court address CORA in Martinelli?
The police petitioners argued in their original proceedings that two
of the exceptions from disclosure set forth in CORA barred the
individual from obtaining the subject documents through discovery
in the pending case. Id. at 176, 612 P.2d at 1093. Those CORA
exceptions authorized public entities to deny public access to
“personnel files” and certain records of criminal investigations if
“disclosure would be contrary to the public interest.” Id. at 176-77,
612 P.2d at 1093 (first citing § 24-72-204(3)(a)(II), C.R.S. 1973; and
then citing § 24-72-305(5), C.R.S. 1978).
¶ 20 The police petitioners essentially argued that the exceptions to
CORA not only apply to requests for public records under CORA but
also to document requests in civil cases. Id. The supreme court
rejected this theory: “[T]he legislature did not intend that the open
records laws would supplant discovery practice in civil litigation.”
Id. at 177, 612 P.2d at 1093. The court explained that CORA is
“directed toward ‘regulation of the entirely different situation of the
general exploration of public records by any citizen during general
9
business hours.’” Id. (quoting Tigue v. City & Cnty. of Honolulu, 520
P.2d 1345, 1348 (Haw. 1974)). The court concluded that the CORA
exceptions on which the police petitioners relied did not, “ipso facto,
exempt the personnel files and the S.I.B. reports from discovery in
civil litigation.” Id. at 177, 612 P.2d at 1094.
¶ 21 Thus, Martinelli stands for the proposition that CORA does not
bar production of documents otherwise producible in civil litigation.
It does not support Archuleta’s contention that individuals litigating
against public entities are precluded from obtaining documents
from those entities through CORA during the pendency of the
litigation.
¶ 22 City of Colorado Springs also does not support Archuleta’s
contention. That case involved the opposite situation from
Martinelli: the plaintiff had submitted a CORA request to obtain a
report relating to an internal evaluation of the Industrial Training
Division of the Colorado Springs Community Services Department
but was not litigating against the Department (other than in the
case he filed under CORA). City of Colorado Springs, 967 P.2d at
1045. The custodian of the report argued that it was privileged
from disclosure under the common law governmental deliberative
10
process privilege and, therefore, was subject to the CORA exception
for “privileged information” contained in section 24-72-204(3)(a)(IV),
C.R.S. 1998. City of Colorado Springs, 967 P.2d at 1045-46.
¶ 23 In City of Colorado Springs, the supreme court adopted the
“deliberative process privilege,” which bars public disclosure of
communications between government officials when disclosure of
the communications would deter the open exchange of opinions. Id.
at 1047, 1050. The court held that the report fell within that
privilege and was thus exempt from inspection under CORA. Id. at
1057-58.
¶ 24 Although, as Archuleta notes, the City of Colorado Springs
court quoted the language in Martinelli stating that CORA is not
intended to “supplant discovery practice in civil litigation,” id. at
1055 (quoting Martinelli, 199 Colo. at 177, 612 P.2d at 1093), it did
so in the context of explaining that CORA “incorporates,” rather
than “supplants,” common law evidentiary privileges. Id. The court
noted that, although CORA does not “refer to . . . common law
privileges by name,” it nonetheless “protect[s] material insulated by
these privileges by general reference to discovery principles.” Id.
11
¶ 25 Moreover, the City of Colorado Springs court articulated an
important distinction between the production of public records
through discovery in civil litigation and through CORA requests:
In contrast to the discovery context, . . . the
need of the party requesting disclosure is not
relevant to a request for public records. The
particular purpose for which one seeks the
public record is not relevant in determining
whether disclosure is required because the
open records laws only require disclosure of
materials which would be routinely disclosed
in discovery.
Id. at 1056 (emphasis added) (citations omitted). Thus, Roane’s
purpose in seeking the recording to support his position in the
declaratory judgment case “is not relevant in determining whether
disclosure is required” under CORA. Id.; see also City of Fort Collins
v. Open Int’l, LLC, No. 21-cv-02063-CNS-MEH, 2022 WL 7582436,
at *6 (D. Colo. Aug. 16, 2022) (unpublished opinion) (“[T]he Court is
. . . mindful that CORA provides a statutory right to request public
records, independent of the discovery procedures set forth in the
Federal Rules of Civil Procedure.”). Accordingly, under City of
Colorado Springs, Archuleta must comply with the request without
regard to Roane’s reason for seeking the recording.
12
¶ 26 Our analysis of the supreme court cases cited in Archuleta’s
opening brief would be incomplete without review of People in
Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988), which relies in
part on Martinelli. Roane cites to A.A.T. in his answer brief and
Archuleta addresses the case in her reply brief.
¶ 27 Although the division decided A.A.T. on jurisdictional grounds,
like this case, it involved the litigants’ attempt to use CORA to
obtain documents relevant to a pending case. Id. at 853-55. In
that case, intervenors in a proceeding for termination of parental
rights submitted a CORA request for records, including documents
concerning “[that] particular termination case,” from the Arapahoe
County Department of Social Services. Id. at 854. The Department
denied the intervenors access to the documents on the grounds that
the request “should be made pursuant to the ‘rules of court
procedure.’” Id. The intervenors responded that “their requests
were not discovery requests, but were legitimate [CORA] requests
. . . , regardless of [the intervenors’] status as parties to [the] case or
of the relevancy of the documents to the action pending before the
court.” Id. The intervenors further asserted that the district court,
13
“in its role as tribunal for termination proceedings,” lacked
jurisdiction to rule on the validity of their CORA request. Id.
¶ 28 The district court disagreed, concluding that it could exercise
jurisdiction over the intervenors’ CORA request. Id. It ordered the
Department to produce certain of the requested documents to the
intervenors pursuant to CORA but held that the records concerning
“[that] particular termination case” must be treated as “discovery
requests under the Rules of Civil Procedure.” Id. On appeal, the
intervenors argued that the trial court in the termination case
lacked subject matter jurisdiction to decide their right to obtain the
requested documents through CORA. Id.
¶ 29 The division agreed with the intervenors, noting that CORA
“does not expressly limit access to any records merely because a
person is engaged in litigation with the public agency from which
access to records is requested.” Id.
¶ 30 The division first explained that the process for obtaining an
expedited court ruling set forth in section 24-72-204(5) and (6),
C.R.S. 1982, of CORA is “the exclusive method for obtaining a
review of the accessibility of these records.” Id. Next, the division
noted that “the claim of entitlement to access to public records
14
under [CORA] presents issues distinct from the issue of the
discoverability of possible evidence for use in litigation.” Id. at 855.
For these reasons, the division concluded that the trial court lacked
subject matter jurisdiction to consider the Department’s objections
to the intervenors’ CORA requests “in the context, and as part, of
[that] juvenile court proceeding.” Id. The division noted, however,
that it was “express[ing] no view upon the substantive issue of the
extent to which intervenors are entitled to any of the records” under
CORA. Id.
¶ 31 The lack of an exception in CORA for pending litigation and
the attorney fee provision of CORA, which Martinelli, City of
Colorado Springs, and A.A.T. do not address, further confirm our
determination that those cases support Roane’s arguments. First,
CORA does not contain an exception expressly barring an individual
from obtaining public records from an entity against whom the
individual is litigating. See generally § 24-72-204, C.R.S. 2022
(listing the grounds for allowance or denial of requests for
inspection of public records under CORA). As we discuss below in
Part II.B.4, case law from other states demonstrates that, absent
such an express exception, a state’s open records act does not bar a
15
litigant from employing the act to obtain documents from an
adverse party that is a public entity.
¶ 32 Second, section 24-72-204(5)(b), which addresses awards of
attorney fees in connection with CORA requests, envisions civil
litigants’ use of CORA. Specifically, that provision mandates
awards of “court costs and reasonable attorney fees to [a] prevailing
applicant” whose CORA request was improperly denied, unless “the
records being sought are related to . . . pending litigation” against a
state or local public body and “are discoverable pursuant to . . . the
Colorado rules of civil procedure.” § 24-72-204(5)(b). Thus, CORA
does not prevent a litigant from employing CORA to obtain public
records for use in a pending suit against the producing entity — it
only prevents that party from recovering attorney fees and costs if
the party could also have obtained the subject documents through
discovery. This statutory language would be meaningless if a
litigant could not employ CORA to obtain documents to support a
pending civil suit against a public entity.
¶ 33 In light of the supreme court’s decisions in Martinelli and City
of Colorado Springs, the division’s decision in A.A.T., and the
provisions of CORA noted above, we reject Archuleta’s argument
16
that an individual litigating against a public entity is barred from
employing CORA to obtain relevant documents from that entity.
¶ 34 Next, we consider the second type of authority on which
Archuleta’s assertion rests.
b. Attorney General Formal Opinion No. 01-1
¶ 35 Archuleta asserts that a formal opinion of the Colorado
Attorney General supports her interpretation of CORA. Colo. Op.
Att’y Gen. No. 01-1 (July 5, 2001).
¶ 36 As a general matter, written opinions by the Colorado Attorney
General are not binding upon us. Justus v. State, 2014 CO 75, ¶ 31
n.11, 336 P.3d 202, 211 n.11. While the Attorney General’s written
opinions are “entitled to respectful consideration as a
contemporaneous interpretation of the law by a government official
charged with the responsibility of such interpretation,” our
resolution of an issue of statutory construction “must proceed from
an independent analysis of the statutory scheme.” Colo. Common
Cause v. Meyer, 758 P.2d 153, 159 (Colo. 1988).
¶ 37 In any event, the Attorney General opinion supports our
determination that CORA generally allows civil litigants to access
public records from a public entity that is an adverse party. The
17
Attorney General opinion acknowledges that “[t]here may be times
when parties to a civil lawsuit can use the Open Records Act to
obtain information concerning their lawsuit from governments in
Colorado, whether or not the government involved is a party to the
lawsuit.” Colo. Op. Att’y Gen. No. 01-1 at 7 (citing to A.A.T., 759
P.2d at 854).
¶ 38 The Attorney General opinion then points to a small number of
situations in which a litigant is precluded from using CORA to
obtain documents from an adverse party that is a public entity,
such as when the request “violates a limit on discovery imposed by
the court or under the rules of civil procedure or otherwise
interferes with the judicial process.” Id. (citing to exception c).
¶ 39 Because Roane did not seek to wield CORA to circumvent a
limit on document requests (as noted above, he did not propound
any discovery requests in the declaratory judgment case),
Archuleta’s argument regarding the possible use of CORA “to
supplement or expand discovery in ongoing litigation” has no
bearing on our analysis. Nothing in the Attorney General opinion
supports Archuleta’s argument.
18
¶ 40 Next, we analyze the third type of authority on which
Archuleta’s interpretation of CORA rests.
c. The United States Supreme Court FOIA Cases
¶ 41 Archuleta points to United States Supreme Court cases
interpreting FOIA to support her argument regarding the interplay
between the discovery rules and open records laws because
Colorado courts have looked to analogous provisions of FOIA when
interpreting CORA. See, e.g., Wick Commc’ns Co. v. Montrose Cnty.
Bd. of Cnty. Comm’rs, 81 P.3d 360, 361 (Colo. 2003). But those
Supreme Court decisions concerned different facts and different
issues from those presented here.
¶ 42 In particular, Archuleta directs us to the United States
Supreme Court’s statement in John Doe Agency v. John Doe Corp.,
493 U.S. 146, 153 (1989), “that the FOIA was not intended to
supplement or displace rules of discovery.” Archuleta, however,
fails to provide the context of that language.
¶ 43 In John Doe Agency, the Supreme Court decided whether the
FOIA exception for documents “compiled for law enforcement
purposes” applies to documents that a federal agency compiled
before the inception of the law enforcement investigation. Id. at
19
148-49. The Court held that the exception applied, even though a
federal agency had initially compiled the documents for reasons
unrelated to law enforcement, because the documents had later
been recompiled for use in a law enforcement investigation at the
time of the FOIA request. Id. at 153-55.
¶ 44 The Court’s statement “that the FOIA was not intended to
supplement or displace rules of discovery” clarified that the right of
a litigant to obtain documents through discovery does not
determine whether those documents are also producible under
FOIA. Id. at 153. The Court did not hold in John Doe Agency that a
party in a civil case is barred from employing FOIA to obtain
documents related to pending litigation against the agency to which
the FOIA request is directed.
¶ 45 Even if, as Archuleta argues, CORA, like FOIA, “is
fundamentally designed to inform the public about agency action
and not to benefit private litigants,” a party’s rights under an open
records act “are neither increased nor decreased by reason of the
fact that [the party] claims an interest in [the subject record] greater
than that shared by the average member of the public.” NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 143 n.10 (1975) (emphasis
20
added). Further, while “[d]iscovery for litigation purposes is not an
expressly indicated purpose of [FOIA],” Renegotiation Bd. v.
Bannercraft Clothing Co., 415 U.S. 1, 24 (1974), the Supreme Court
made that statement in addressing whether a party to an
administrative proceeding may obtain an injunction to enforce a
FOIA request in the face of specific statutory language that
precludes “interruption[s] for judicial review” before the party
exhausts its administrative remedies. Id. at 20-24.
¶ 46 In sum, the Supreme Court decisions that Archuleta cites do
not stand for the position that a party may not employ an open
records act request to obtain documents from a public entity
against which the party is litigating.
¶ 47 We now turn to Archuleta’s argument that the inspection
order is inconsistent with public policy.
3. Archuleta’s Policy Argument
¶ 48 Archuleta warns that allowing civil litigants to use CORA for
discovery purposes would “open the door to unlimited discovery
against public entities subject to open records laws” and place “an
excessive, undue and inequitable burden” on public entities. For
example, Archuleta points out that a public entity must allow
21
inspection of a record requested under CORA within three working
days (presumptively, with possible extensions for “extenuating
circumstances”), § 24-72-203(3)(b), while the public entity would
have thirty-five days to respond to document requests propounded
under C.R.C.P. 16.1(k)(4)(B). She also asserts that affirming the
inspection order would throw “the limits on discovery set forth in
C.R.C.P. 16.1(k)(4) and 26(b)(2) . . . out the proverbial window.” We
disagree based on the language of CORA.
¶ 49 Because our reading of CORA is consistent with the
authorities discussed above, including the cases cited in Archuleta’s
opening brief, we perceive that her complaint is with CORA itself.
Her challenge to the inspection order cannot be squared with the
General Assembly’s unambiguous declaration that “the public
policy of this state [is] that all public records shall be open for
inspection by any person at reasonable times, except as . . .
specifically provided by law.” § 24-72-201 (emphases added). We
do not see how a requestor’s status as a litigant would create a
more “excessive, undue and inequitable burden” on an opposing
party that is a public entity than the burden that CORA places on
that entity when a nonlitigant seeks documents from the entity.
22
¶ 50 If Archuleta is indeed concerned about the burden that CORA
imposes on public entities, her remedy is a petition to the General
Assembly to amend CORA. We are not at liberty to engraft an
exception onto CORA that the General Assembly did not enact. See
Sierra Club v. Billingsley, 166 P.3d 309, 317 (Colo. App. 2007).
“Where the legislature could have chosen to restrict the application
of a statute, but chose not to, we do not read additional restrictions
into the statute.” Springer v. City & Cnty. of Denver, 13 P.3d 794,
804 (Colo. 2000). “And we will not second-guess the policy
preferences of the legislature.” Prairie Mountain Publ’g Co. v.
Regents of Univ. of Colo., 2021 COA 26, ¶ 25, 491 P.3d 472, 477.
¶ 51 We further note that Archuleta’s argument would lead to the
absurd situation in which a litigant seeking documents from a
party-opponent under CORA would need to dismiss his or her
pending action against the public entity without prejudice, submit a
CORA request, and then refile the action after obtaining the
requested documents. We must avoid interpreting CORA in a way
that would lead to an absurd result. Denver Post Corp. v. Ritter, 255
P.3d 1083, 1089 (Colo. 2011).
23
4. Analogous Authorities from Other Jurisdictions
¶ 52 We now turn to analogous cases from other jurisdictions that
have addressed the very issue presented here. Courts in other
states have allowed an individual to obtain documents from a
public entity under the state’s open records act even if the
individual sought the documents in connection with pending
litigation against the public entity, with one notable exception —
where the act contained an explicit “pending litigation” exception.
See, e.g., Kentner v. Ind. Pub. Emps.’ Plan, Inc., 852 N.E.2d 565, 575
(Ind. Ct. App. 2006) (concluding that a plaintiff’s right to obtain
documents under the Indiana Access to Public Records Act is
“unaffected by his intended use of those documents and his alleged
abuse of the . . . discovery process”); Konvalinka v. Chattanooga-
Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 361 (Tenn. 2008) (“A
growing number of courts, construing public records statutes
similar to ours, have decided that persons should not be denied
access to public records solely because they are involved, or may be
involved, in litigation with a governmental entity.”); Stevens v.
Lemmie, 40 Va. Cir. 499, 1996 WL 33472511, at *11 (Dec. 10,
1996) (“This Court finds no exception to [the Virginia FOIA] that
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precludes its use where the information sought may become
evidence in a pending or contemplated civil action.”).
¶ 53 The evolution of Michigan’s open records act is instructive. In
1997, the Michigan Court of Appeals held that a plaintiff who had
filed suit against a public entity could use Michigan’s version of
FOIA to obtain documents pertaining to the suit. See Cent. Mich.
Univ. Supervisory-Tech. Ass’n, MEA/NEA v. Bd. of Trs. of Cent. Mich.
Univ., 567 N.W.2d 696, 697 (Mich. Ct. App. 1997). The court
determined that the use of a FOIA request under such
circumstances would be lawful, detecting no “conflict between the
court rules and the [Michigan] FOIA.” Id. The court reasoned that
“[t]he fact that discovery is available as a result of pending litigation
between the parties does not exempt a public body from complying
with the public records law.” Id. Accordingly, the court refused “to
read into the FOIA the restriction that, once litigation commences, a
party forfeits the right available to all other members of the public
and is confined to discovery available in accordance with court
rule.” Id.¶ 54 In response to this decision, the Michigan legislature amended
its state’s version of FOIA to add an exception for “[r]ecords or
25
information relating to a civil action in which the requesting party
and the public body are parties.” Mich. Comp. Laws Ann.
§ 15.243(1)(v) (West 2022); see Seyler v. City of Troy, No. 297573,
2011 WL 5374990, at *3 (Mich. Ct. App. Nov. 8, 2011) (unpublished
opinion).
¶ 55 Vermont’s open records statute similarly explicitly bars public
access to “[r]ecords that are relevant to litigation to which the public
agency is a party of record, provided all such matters shall be
available to the public after ruled discoverable by the court before
which the litigation is pending, but in any event upon final
termination of the litigation.” Vt. Stat. Ann. tit. 1, § 317(c)(14),
(West 2022).
¶ 56 We are unaware of any case, from any jurisdiction lacking a
“pending litigation” exception, holding that a public entity litigating
against an individual is not required to respond to that individual’s
open records act request while the litigation remains pending.
¶ 57 The Colorado General Assembly could have enacted a “pending
litigation” exception — like the exceptions adopted in Michigan and
Vermont — to bar litigants in pending cases against public entities
from obtaining documents relevant to the litigation from the public
26
entity through a CORA request. But it did not do so. Accordingly,
if Archuleta wishes to engraft a “pending litigation” exception onto
CORA, she must do so by petitioning her state legislators. See
Springer, 13 P.3d at 804; Sierra Club, 166 P.3d at 317.
¶ 58 In sum, our reading of CORA is in harmony with other states’
interpretations of their open records laws in cases involving facts
similar to those presented here.
C. The District Court Correctly Ordered Archuleta to
Provide the Requested Record to Roane
¶ 59 We now turn to our review of whether CORA permits Roane’s
inspection of the documents in his request.
¶ 60 As explained above, Archuleta denied Roane’s request under
exception c, stating that inspection was “prohibited by rules
promulgated by the supreme court or by the order of any court.”
§ 24-72-204(1)(c). She asserted that the request was “prohibited by
the Supreme Court’s order” in Martinelli and that it was further
prohibited by the Rules of Civil Procedure that “set[] forth the
requirements for any request for production of documents and
things.”
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¶ 61 Having already dispensed with Archuleta’s Martinelli
argument, we are left with the issue of whether the request violated
any “rules promulgated by the supreme court” — the Colorado
Rules of Civil Procedure. See Martinelli, 199 Colo. at 176-77, 612
P.2d at 1093 (construing the “rules promulgated by the supreme
court” as a reference to the rules of civil procedure). We disagree
that the inspection order violates the Rules of Civil Procedure
applicable to document requests.
¶ 62 Even if we were to determine that a CORA request would
count as a request for production of documents, we do not find any
Rule of Civil Procedure that bars the request. Under the simplified
procedural rules that governed the underlying case, Roane was
entitled to propound five requests for production of documents.
C.R.C.P. 16.1(k)(4)(B). Even if we assume that the request was a
request for production of documents under C.R.C.P. 16.1(k)(4)(B),
which we are not deciding, Roane did not exceed the five-request
limit.
¶ 63 Further, although Archuleta denied the request as not
comporting with the discovery rules, as explained above, Roane was
entitled to use CORA, as a distinct procedure from the production
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of documents as part of discovery, to request the record. See
Martinelli, 199 Colo. at 177, 612 P.2d at 1093. We find no language
in Rule 34 that prohibits Roane’s CORA request. Because
Archuleta points to no other rules that prohibit Roane’s inspection,
we agree with the district court that Archuleta was required to grant
the request.
III. Conclusion
¶ 64 The inspection order is affirmed.
JUDGE FOX and JUDGE FREYRE concur.
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