Why is it so hard to get police records in Colorado?
On the night of January 15, 2015, Aurora Police Department officers shot and killed Kavonda Payton.
Local news reports from the Denver Post and 7News covered the shooting the day after, but did not follow the story beyond that. Westword did a brief follow-up article about Payton and reactions from friends and family. None of these outlets attempted to seek out or analyze police reports or other records to try to reconstruct the shooting.
According to the 18th Judicial District Attorney’s report of the shooting released eight months later, the incident began with an armed robbery at a convenience store and led to a high-speed car chase. After winding through the streets of northern Aurora for a few miles, officers used their patrol cars to ram the suspect vehicle into a ditch. One of the suspects, Payton, tried to flee from the wrecked vehicle by foot. In their reports, every officer reports seeing Payton pointing a gun in their direction before they shot him. After investigating, the DA concluded the officers’ shooting was justified, and filed no charges. This report remains the only official account of what happened that night.
Yet even that report raises questions and omits details; such as how officers were able to so clearly see a handgun in Payton’s right hand in the pitch-black darkness of the dirt road, or how Payton was shot three times in the back while turning to point a gun at officers, or why there is a discrepancy between officer accounts about which hand Payton was holding the gun with.
Raising these issues does not refute the report, nor assert that Payton’s shooting is unjustified. They address a broader point: transparency and access to police records. During the investigation, the public were unable to access records of Payton’s shooting, due in large part to the Colorado Criminal Justice Records Act (CCJRA).
The CCJRA allows public access to law enforcement records such as police reports, arrest records, forensic analysis, witness statements, etc. The CCJRA is similar to the Colorado Open Records Act (CORA), the statute that allows public access to government records, but with one big difference – if law enforcement officials really do not want to release something to the public, they usually do not have to.
“In Colorado, at least, it is a very discretionary law for law enforcement agencies,” said Jeffrey A. Roberts, Executive Director of the Colorado Freedom of Information Coalition (CFOIC). “Most records can be withheld if the agency conducts a balancing test and determines that release would be ‘contrary to the public interest.’”
That language comes from C.R.S. §24-72-204(2)(a), and is broad enough to give law enforcement agencies a lot of discretion as to what information they can seal or redact.
Often, police custodians cite an ‘ongoing investigation’ that may be compromised if these records are released. “In a lot of cases, it is understandable where a law enforcement agency needs time to do its job,” Roberts acknowledged. “People get that.”
However, Roberts said, this excuse is sometimes used even long after the case has been resolved.
“This reasoning is used sometimes for investigations that are very, very old but they claim they are still open, so it’s a way to close off records entirely sometimes when there’s not much happening with the case.”
When it comes to police oversight, internal affairs records are often the most important for the public to access, as they contain information of possible police misconduct. However, police agencies often protect these records the most because of their sensitivity, and Roberts sees this as a significant obstacle to transparency.
“When a law enforcement officer is accused of acting improperly on the job, and there’s been an investigation into that and the investigation is complete, it is often in the public interest to know what that investigation revealed.” However, “those records are part of that large section of criminal justice records that can be withheld under that ‘contrary to the public interest’ provision.”
Civil rights organizations are also concerned about the difficulty of obtaining these records. Denise Maes, Public Policy Director at the ACLU of Colorado, said the organization favors police agencies to be as transparent as possible.
“We urge our policy makers to make Internal Affairs Bureau files explicitly subject to the CCJRA,” Maes said. “The public interest exception is big loophole in our transparency-first approach.”
Cost is often another barrier to accessing any public records. Both CORA and CCJRA allow a maximum 25-cent per page fee for all public records. Additionally, if a record custodian needs time to find and review records for sensitive information, they may legally charge 30 dollars per hour for research and retrieval — with the first hour free. Those fees can accumulate into thousands of dollars, and while CORA requires waivers for purposes such as education or journalism, the CCJRA leaves waivers at the sole discretion of police custodians.
In a recent blog post on the CFOIC website, Roberts reported how a Sheridan resident fared when he made an open records request to the city clerk for any e-mails relating to the city’s red light camera and photo radar systems. The city returned with an estimate of $20,000 to comply with the request due to the huge amount of work involved in recovering and searching the e-mails from an outdated system.
Roberts said that more often than not, cities are not trying to be malicious when they present these kind of estimates; they are simply not able to handle these kinds of requests because of outdated systems and record-keeping practices.
Regardless of whether the city is intentionally trying to create the cost barrier, it still creates a hindrance to access. Roberts explained.
“The bottom line is, yeah, they’re public records, but you can’t have them because there’s no way anybody can ever afford that.”
The Colorado legislature is trying to address some of the cost and access problems with recent legislation. SB17-040 would require custodians to store public records in the same digital format as they are created, as well as making them searchable – such as with a PDF format. The law would require local agencies to update or upgrade their systems as necessary to allow easier public accessibility.
Maes said the ACLU is supportive of SB40 to the extent that it resolves issues with accessibility. However, the organization is concerned about the direction the bill is taking.
“[SB40] has been bogged down by amendments that we think compromise government transparency and as a result, we are watching the bill carefully.”
In the end, the ACLU and CFOIC both agree that the introduction of the bill is a step in the right direction for public access to records.
“Ultimately,” Maes said, “transparency is the goal.”