Colorado Republican Party claims victory in open records lawsuit

The Colorado Statesman

A recent appellate court ruling in favor of the Colorado Republican Party could pave the way for increased government transparency. GOP state Chairman Ryan Call says the Nov. 10 Colorado Court of Appeals ruling, in which the party was awarded court costs and attorney fees stemming from a 2006 open records lawsuit, demonstrates that state law is on the side of open and accountable government.

The lawsuit began in 2006 when Republican Party leaders sought to reveal information recorded in surveys mailed to Colorado voters in Democratic-targeted districts. The information was subsequently returned to ten Democratic lawmakers to individually review and analyze. The surveys contained a host of questions reflecting legal, political and social issues. Republican Party leaders wanted a glimpse of the surveys for themselves, arguing that the survey was a “back door poll” designed by an unknown progressive political action group to secretly campaign for Democrats. Political action groups are often run by political action committees to raise money for campaigns.

“They were utilizing a sort of loophole to send out a bunch of campaign-oriented mailers to constituents in targeted Democratic districts to boost name identification,” Call said in a recent interview with The Colorado Statesman. “It was paid for by an outside group who was soliciting on behalf of legislators, seeking opinions and perspectives of the voters in an attempt to give the legislators a leg up in communicating with their constituents.”

Republican Party leaders were able to identify the political action group as Research and Democracy, but they were never able to determine who actually paid for the mailers, or whether there had been any coordination with Democratic lawmakers. The lawmakers named in the lawsuit were Reps. Debbie Benefield, D-Arvada, Bernie Buescher, D-Grand Junction, Morgan Carroll, D-Aurora, Gwyn Green, D-Golden, Mary Hodge, D-Brighton, Liane “Buffie” McFadyen, D-Pueblo West, Wes McKinley, D-Walsh, Michael Merrifield, D-Colorado Springs, James Riesberg, D-Greeley, and Judy Solano, D-Brighton. Only two lawmakers are still in office: McKinley and Solano, are both still representing their house districts, and Carroll and Hodge are currently state senators.

The Colorado GOP tried to obtain the 1,584 surveys in 2006 through a Colorado Open Records Act request. The lawmakers, however, declined, arguing that the surveys were confidential and contained personal information. The Party sued, taking the case to Denver District Court where the trial court held a review of seven of the surveys and then determined that the lawmakers should release all of the surveys to the Colorado Republican Party.

In 2007, the lawmakers filed an appeal, and the appellate court reversed the trial court’s order. In its decision, the appellate court pointed out that many of the surveys contained personal information from constituents, including details pertaining to finances and health. The case was remanded back to the trial court, which conducted another review, this time of all the completed surveys.

Upon further review by the court, the lawmakers released 925 of the surveys to the Colorado Republican Party, including 742 that had previously been produced before the 2007 appeal; 181 unredacted surveys; and two redacted surveys. But 659 of the surveys were withheld. The trial court concluded that those 659 surveys contained confidential information and were properly withheld.

In 2010, the Colorado Republican Party filed a motion for court costs and attorney fees, arguing that they were the prevailing party in the lawsuit because it forced the lawmakers to release at least some of the surveys. But the trial court denied the motion, deciding that the Colorado Republican Party was not a prevailing applicant. The court determined that the lawmakers had voluntarily released the surveys, and therefore did not do so because of the outcome of the lawsuit.

The case was then appealed again, bringing it back to the Colorado Court of Appeals, which ruled that even if only one of the surveys was ordered to be released, that makes the Colorado Republican Party the prevailing party. The appellate court ruled that the lawmakers did not voluntarily release the surveys, but instead did so because of pressure brought by the lawsuit.

“The Representatives were ordered in 2007 to produce the surveys. Even though they appealed that order, they obeyed it at least in part by producing 742 surveys without awaiting the outcome of the appeal,” wrote Justices Alan Loeb and David Richman in their Nov. 10 decision. “Therefore, [the Colorado Republican Party] prevailed by obtaining production of those surveys pursuant to court order.”

The appellate court on Nov. 10 remanded the case back to the trial court, ordering it to determine the amount of court costs and attorney fees to be awarded to the Colorado Republican Party. Republican Party leaders are calling the ruling a victory for transparency in government.

“Whether you’re a media outlet, or whether you’re an independent journalist, or a party, or a committee, or any organization or individual who is seeking access to what are public records, it says that the state has to now be prepared to defend the withholding of what are public records, and if they lose, they’re now on the hook for attorney fees,” said Call.

John Zakhem, former counsel to the state GOP who represented the party in this court proceeding, agreed that the ruling is a major victory for those who seek transparency in government.

“This opinion definitely clarifies elected officials’ responsibility to disclose public records,” Zakhem said.

Maureen Witt, an attorney with Holland & Hart, who is representing the Democratic lawmakers, declined to comment for this story because the case is ongoing.

Reached for comment, former legislator Green did not address the recent appellate court ruling, but maintained concerns over releasing the surveys in the first place. Confidential and personal information should be protected by law, she said.

“We felt, and I certainly felt, that this was confidential information, that if someone writes to me what they feel is important, I don’t have the right to share that with somebody else, not unless they give me their permission,” said Green. “It’s an issue of privacy.”