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Colorado public records mediation bill gets a new trial with big amendments

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My friend and former coworker Jeffrey Roberts says legislation to help people seeking public records avoid a courtroom to get them is getting a retrial.

On the Colorado Freedom of Information Coalition blog, Roberts said House Bill 1177 was reworked to create a cooling off period, a meeting between the record requester and its custodian and shared cost for mediation, which is about $75 an hour.

The House State, Veterans and Military Affairs Committee passed the legislation 9-0 Thursday and moves next to the House floor.

“If a requester files a notice of intent to sue over a records denial, a government entity would have 14 days to meet with the requester in person or by phone,” writes Roberts, FOIC’s executive director.

“A professional mediator would get involved if both parties agree and share the cost. But if the requester explains why he or she has an ‘expedited need’ for the records, the current three-day notice of intent to sue in the Colorado Open Records Act (CORA) would be in effect.”

The 14-day window is a “cooling-off period.” The original bill also said the loser had to pay the winner’s fees, which might mean a small nonprofit or citizen could wind up writing a big check to the government.

Rep. Cole Wist, R-Centennial, is sponsoring the bill with Rep. Alec Garnett, D-Denver.

Wist told the House State, Veterans and Military Affairs Committee the meeting between record seeker and record holder “may last five minutes. It might last five hours … The primary purpose here is to facilitate conversations.”

The bill’s goal is to drive down the number of instances where litigation happens.

“We heard from custodians that it was in meetings where they were able to better understand what the requester is asking,” Garnett said. “I think asking everyone to do that is a good best practice.”

As it stands now, a local government could deny access to public records simply by forcing regular folks to spend their own money on a lawyer to sue the government, which most people can’t afford.

“Among other concerns, the bill didn’t specify a timeline for bringing mediation, possibly allowing government records custodians to drag out the CORA process,” Roberts wrote on the FOIC blog.

“Peg Perl, senior counsel for Colorado Ethics Watch, noted that the original measure ignored the reality that the record custodian ‘is holding all the cards’ in a dispute with a requester.”

“The original bill as drafted didn’t quite strike the right balance,” Perl told the committee.

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