Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 22CA204
Attorneys for Petitioner: Archuleta County Attorney's
Office Todd A. Weaver, County Attorney
Pagosa
Springs, Colorado Respondent Matt Roane, pro se
Pagosa
Springs, Colorado
Attorneys for Amici Curiae ACLU of Colorado and Colorado
Freedom of Information Coalition: Timothy R. Macdonald Anna
I. Kurtz Laura Moraff
2
Denver,
Colorado
Attorneys for Amicus Curiae Colorado Counties, Inc.: Hall
&Evans, L.L.C. Andrew D. Ringel Denver, Colorado
JUSTICE HOOD delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE
BERKENKOTTER joined. CHIEF JUSTICE MARQUEZ, joined by JUSTICE
SAMOUR, concurred in the judgment.
3
OPINION
HOOD,
JUSTICE.
¶1
Respondent Matt Roane was engaged in litigation with the
Archuleta County Board of Commissioners ("Board")
when he sent a Colorado Open Records Act ("CORA"),
§§ 24-72-200.1 to -205.5, C.R.S. (2024), request to
Archuleta County Clerk and Recorder, Kristy Archuleta. In
that request, Roane sought a copy of a recent Board meeting
recording. Archuleta denied the request, claiming it
unlawfully circumvented the Colorado Rules of Civil
Procedure. Roane had not sought any records through discovery
in his civil action against the Board. Reasoning that his
civil action and his CORA request were not legally
interdependent, Roane sued Archuleta alleging that Archuleta
had violated CORA.
¶2
Section 24-72-204(1)(c), C.R.S. (2024), provides that
inspection of a public document may be denied when
"[s]uch inspection is prohibited by rules promulgated by
the supreme court or by the order of any court." The
issue we address today is whether this provision allows a
public entity to invoke the Rules of Civil Procedure to deny
a CORA request to inspect documents related to pending
litigation. We hold that a litigant may obtain records under
CORA even if those records are relevant to pending litigation
and the litigant has propounded no document requests under
the Rules of Civil Procedure.
4
I.
Facts and Procedural History
¶3
In 2020, Roane initiated a declaratory-judgment action
against the Board, alleging that the Board should have taken
minutes at its September 22 "work session." This
action was subject to C.R.C.P. 16.1, but Roane chose not to
submit any document requests under that rule. Instead, Roane
submitted a CORA request for documents related to the
September 22 meeting as well as for a tape recording of a
related October 6 meeting. Archuleta denied the CORA request
in a letter from the Archuleta County Attorney, who cited
section 24-72-204(1)(c) and Martinelli v. District
Court, 612 P.2d 1083, 1093 (Colo. 1980). The letter
asserted that Archuleta didn't have to produce the
requested materials because Roane was "seeking
information to support [his] Motion for Summary Judgment in
[his suit against the Board]" in violation of CORA and
C.R.C.P. 34. (The letter didn't explain how the request
would violate Rule 34.)
¶4
In January 2021, Roane filed a CORA action against Archuleta.
In his complaint, Roane sought an order to show cause why the
October 6 recording should not be made available and sought
an order requiring Archuleta to make the recording available
to him. The district court granted the motion to show cause,
noting that Archuleta's argument "presupposes that
[C.R.C.P.] 16.1 prohibits [Roane] from preparing his case by
obtaining evidence independent of the discovery and
disclosure procedures outlined in Rule 16.1." Because
Rule 16.1
5
creates no such prohibition, the district court ordered
Archuleta to produce the recording.
¶5
In February 2022, Archuleta appealed the district court's
order, arguing that the district court erroneously permitted
Roane to use a CORA request to "supplant discovery
practice in civil litigation, in complete contradiction
to" Martinelli and City of Colorado Springs
v. White, 967 P.2d 1042 (Colo. 1998). A division of the
court of appeals disagreed. In a unanimous published opinion,
it held that the plain language of CORA, relevant Colorado
caselaw, and persuasive precedent from other jurisdictions
support Roane's position that litigation against a public
entity doesn't preclude a litigant's use of CORA to
inspect that entity's public records. Roane v.
Archuleta, 2022 COA 143, ¶¶ 1, 12, 526 P.3d
220, 223-24. Accordingly, the division affirmed the district
court's inspection order. Id. at ¶ 64, 526
P.3d at 231.
¶6
We granted Archuleta's certiorari petition for review of
the division's decision.[1]
6
II.
Analysis
¶7
After addressing the standard of review and commonplace
principles of interpretation, we focus on the language of
CORA and our rules of civil procedure. Next, we examine
Colorado caselaw before turning to federal precedent
interpreting the Freedom of Information Act
("FOIA"). Lastly, we consider other states'
understanding of similar open records statutes.
A.
Standard of Review and Principles of Interpretation
¶8
We review de novo a lower court's interpretation of CORA,
Reno v. Marks, 2015 CO 33, ¶ 20, 349 P.3d 248,
253; Denver Publ'g Co. v. Bd. of Cnty.
Comm'rs, 121 P.3d 190, 195 (Colo. 2005), and the
Rules of Civil Procedure, City &Cnty. of Broomfield
v. Farmers Reservoir &Irrigation Co., 239 P.3d 1270,
1275 (Colo. 2010). We review our rules in a manner
"consistent with principles of statutory
construction." People v. Shell, 148 P.3d 162,
178 (Colo. 2006).
¶9
The goal of statutory interpretation is to give effect to the
intent of the General Assembly. Denver Post Corp. v.
Ritter, 255 P.3d 1083, 1088 (Colo. 2011). To do that, we
look to the plain language of the statute and "consider
it within the context of the statute as a whole."
Id. Further, "[w]e give effect to words and
phrases according to their plain and ordinary meaning,"
and "[w]e avoid interpretations that would lead to an
absurd result." Id. at 1089. We look to the
statutory scheme as a whole "to give consistent,
harmonious, and sensible effect
7
to all its parts." Dep't of Nat. Res. v. 5 Star
Feedlot, Inc., 2021 CO 27, ¶ 20, 486 P.3d 250, 256.
B.
CORA
¶10
When it comes to public records, Colorado law favors
transparency. In enacting CORA, the General Assembly declared
that "all public records shall be open for inspection by
any person at reasonable times, except as provided
in this part 2 or as otherwise specifically provided
by law." § 24-72-201, C.R.S. (2024) (emphases
added); see also Denver Publ'g Co. v. Dreyfus,
520 P.2d 104, 107 (Colo. 1974) ("[W]e are guided by the
clear legislative intent manifested in the declaration of
policy and the language of [CORA] itself. Public records are
to be open for inspection except as provided for in the act
itself or otherwise specifically provided by
law."). CORA imposes no limitation "as to the
reason or reasons for which the inspection is
undertaken." Martinelli, 612 P.2d at 1093.
¶11
Section 24-72-204(1)(c) provides that a custodian of a public
entity "shall allow any person the right of inspection
of such records" unless "[s]uch inspection is
prohibited by rules promulgated by the supreme court."
The phrase "rules promulgated by the supreme court"
encompasses the Rules of Civil Procedure.
Martinelli, 612 P.2d at 1093.
¶12
We turn then to the relevant rules of civil procedure. Rule
34 governs the production of documents, but it doesn't
address open records requests. Likewise,
8
Rule 16.1, which governs cases subject to simplified
procedures such as Roane's declaratory-judgment action
against the Board, limits litigants to five document
requests, but it doesn't address CORA requests by
litigants. C.R.C.P. 16.1(k)(4). More to the point, none of
the relevant rules prohibits a CORA request during
litigation. And we are not at liberty to fashion such a rule
here. Farmers Reservoir &Irrigation Co., 239
P.3d at 1275 ("Words and provisions should not be added
to a rule [of civil procedure] ....").[2] Likewise, we are
not free to simply treat a CORA request as constituting a
request for production of documents in related litigation.
Even if we could, line-drawing problems would quickly emerge.
When would a CORA request be sufficiently related to
litigation to constitute a request for production of
documents under the civil rules? When would parties be
sufficiently related to count for these purposes? Should we
look to the law of agency to resolve a request from a third
party acting at the behest of someone like Roane? Would a
party who's requesting documents for a separate purpose
be precluded from doing so simply because they're in
litigation with the entity?
9
¶13
Moreover, we must construe statutes as a whole, and section
24-72-204(5)(b) indicates that both avenues-discovery
requests and CORA-are available to litigants. This section
provides that unless the CORA court determines that the
denial of the inspection request was proper, that court
"shall award court costs and reasonable attorney fees to
the prevailing applicant . . . except that no court costs and
attorney fees shall be awarded to a person who has filed
a lawsuit against [a public entity] . . . if the court
finds that the records being sought are related to the
pending litigation and are discoverable pursuant to" the
rules. Id. (emphasis added). Thus, section
24-72-204(5)(b) envisions a scenario in which a litigant
against a public entity also successfully seeks related and
discoverable records under CORA from the same public entity.
¶14
Nothing in CORA's plain language limits inspection simply
because the public entity is being sued by the requester. On
the contrary, the plain language strongly suggests that
Roane's request to Archuleta was proper under CORA. But,
like the division, we will consider precedent before
finishing our analysis.
C.
Colorado Precedent
¶15
Archuleta argues that Martinelli interpreted CORA as
preventing civil litigants from using the statute to bypass
discovery procedures. The division observed, however, that
Martinelli simply "stands for the proposition
that CORA
10
does not bar production of documents otherwise producible in
civil litigation." Roane, ¶ 21, 526 P.3d
at 225. We agree with the division.
¶16
In Martinelli, the petitioners argued that certain
limiting language in CORA-protecting personnel files from
disclosure-also prevented those files from being discoverable
in civil litigation. 612 P.2d at 1093. We disagreed,
reasoning that Colorado's open records laws aren't
intended to "supplant discovery practice in civil
litigation." Id. Rather, they are
"directed toward regulation of the entirely different
situation of the general exploration of public records by any
citizen during general business hours." Id.
(quoting Tighe v. City &Cnty. of Honolulu, 520
P.2d 1345, 1348 (Haw. 1974)). In other words, the
petitioners' effort to engraft statutory requirements
onto the Rules of Civil Procedure failed. Likewise,
Archuleta's effort to insert generic rules of civil
procedure into a CORA exception fails here. The two legal
regimes are distinct.
¶17
In City of Colorado Springs, we considered whether
Colorado common law contains a deliberative-process privilege
that protects documents from inspection under CORA. 967 P.2d
at 1045. Because "the General Assembly 'did not
intend that the open records laws would supplant discovery
practice in civil litigation,'" we concluded that
CORA incorporated common-law privileges. Id. at 1055
(quoting Martinelli, 612 P.2d at 1093). Thus, as the
division noted, we interpreted CORA and the rules of civil
procedure to incorporate certain common-law
11
privileges; we did not interpret them to prohibit the use of
CORA by litigants against a public entity. Id.;
Roane, ¶ 21, 526 P.3d at 225-26.
¶18
In short, we agree with the division that this court's
precedent does nothing to curtail a litigant's right to
inspect public documents under CORA during litigation against
a public entity. Roane, ¶ 21, 526 P.3d at 225
("[Martinelli] does not support Archuleta's
contention that individuals litigating against public
entities are precluded from obtaining documents from those
entities through CORA."). Rather, Martinelli
and City of Colorado Springs offer adjacent opinions
with which our decision today is consistent. Here, Roane
didn't give up his right to inspect public documents in
the Board's possession just because he sued the Board.
¶19
Having examined our caselaw, we now assess persuasive
precedent from other jurisdictions.
D.
FOIA
¶20
Colorado courts have relied on interpretations of CORA's
federal counterpart, FOIA, to inform interpretation of
analogous CORA provisions. Wick Commc'ns Co. v.
Montrose Cnty. Bd. of Cnty. Comm'rs, 81 P.3d 360,
363 (Colo. 2003). Additionally, "the intent [of CORA and
FOIA] is the same: an agency cannot improperly withhold
agency records, and if it does so, the courts are empowered
to remedy the situation." Id.
12
¶21
For example, in NLRB v. Sears, Roebuck &Co., 421
U.S. 132, 136 (1975), the Supreme Court noted that FOIA
"seeks 'to establish a general philosophy of full
agency disclosure unless information is exempted under
clearly delineated statutory language.'" (Quoting S.
Rep. No. 89-813, at 3 (1965).) In that case, Sears sought
inspection of National Labor Relations Board
("NLRB") records under FOIA while also litigating
against the NLRB. Id. at 135-36. The Court noted
that FOIA "is fundamentally designed to inform the
public about agency action and not to benefit private
litigants." Id. at 143 n.10. That meant that
"Sears' rights under [FOIA] are neither increased
nor decreased [because its interest in the
NLRB's documents is] greater than that shared by the
average member of the public." Id. (emphasis
added).
¶22
The division below correctly understood that FOIA doesn't
prevent litigants from exercising their right to inspect
public documents without a clear statutory exception. See
Roane, ¶ 46, 526 P.3d at 229. So too under CORA,
which features no clear statutory exception for a person
litigating against a public entity in Colorado.
E.
Other States
¶23
Courts in Indiana, Tennessee, and Virginia have interpreted
their states' respective open records acts to permit an
individual to request inspection from a public entity with
which the individual is engaged in litigation.
13
See Kentner v. Ind. Pub. Emps.' Plan, Inc., 852
N.E.2d 565, 575 (Ind.Ct.App. 2006) (concluding that whether
the requester "intends to use the requested documents to
watch over IPEP's conduct . . . [,] to supplement his
case in . . . [l]itigation, or to paper the walls of his
house with and write a song about[] has absolutely no bearing
on whether he is entitled to those documents");
Konvalinka v. Chattanooga-Hamilton Cnty. Hosp.
Auth., 249 S.W.3d 346, 360-61 (Tenn. 2008) (concluding
that neither Tennessee's discovery rules nor its public
records statutes "expressly limit or prevent persons who
are in litigation with a government entity . . . from filing
petitions under [Tennessee's public records act] seeking
access to public records relevant to the litigation" and
noting that "[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 . . . in litigation with a
governmental entity"); Stevens v. Lemmie, 40
Va. Cir. 499, 1996 WL 33472511, at *11 (Va. Cir. Ct. 1996)
(concluding, based on precedent from the Supreme Court of
Virginia, that "no exception to [Virginia's open
records act] . . . precludes its use where the information
sought may become evidence in a pending or contemplated civil
action").
¶24
By contrast, states that do have a
pending-litigation exception put the statutory exception on
the books. For example, Michigan's statute has an
exception for "[r]ecords or information relating to a
civil action in which the
14
requesting party and the public body are parties." Mich.
Comp. Laws Ann. § 15.243(1)(v) (West 2023). Vermont,
too, has an explicit statutory exception. Vt. Stat. Ann. tit.
1, § 317(c) (West 2023).
¶25
If, like the legislatures of Michigan and Vermont,
Colorado's General Assembly wishes to add a CORA
exception to restrict litigants, it could do so (subject, of
course, to judicial review). It hasn't done so yet, and
we won't read in such an exception.
III.
Conclusion
¶26
We affirm the court of appeals' judgment.[3]
CHIEF
JUSTICE MARQUEZ, joined by JUSTICE SAMOUR, concurred in the
judgment.
15
CHIEF
JUSTICE MARQUEZ, joined by JUSTICE SAMOUR, concurring in the
judgment.
¶27
I ultimately agree that Matt Roane was entitled to obtain the
recording of the Archuleta County Board of Commissioners'
meeting, but only because it amounted to a proper discovery
request under the rules of civil procedure promulgated by
this court-not because it was a proper request under
the Colorado Open Records Act ("CORA"),
§§ 24-72-200.1 to -205.5, C.R.S. (2024).
¶28
I write separately to express my grave concern with the
majority's ruling today, which misconstrues CORA,
misreads our decision in Martinelli v. District
Court, 612 P.2d 1083 (Colo. 1980), and inexplicably
cedes our exclusive constitutional authority to promulgate
rules governing litigation in our courts. In so doing,
today's decision creates a lopsided litigation
environment that will disadvantage public entities subject to
CORA and will undermine trial courts' ability under the
Colorado Rules of Civil Procedure to actively manage
discovery in civil cases involving such public entities. And
it will impact not only cases governed by C.R.C.P. 16.1, but
also more complex cases governed by C.R.C.P. 16.
¶29
Moreover, today's decision does all of this
unnecessarily. The same result could easily be reached by
treating Roane's request as appropriate under the rules
of civil procedure. Because today's decision needlessly
undermines Colorado's
16
constitutional separation of powers and distorts the
litigation process for public entities across the state, I
respectfully concur only in the judgment.
I.
Our Constitutional Rulemaking Authority
¶30
The question before us is whether a party who is litigating a
civil action against a public entity may rely on CORA to
request documents for purposes of that specific litigation,
rather than follow the discovery rules set forth in the
Colorado Rules of Civil Procedure promulgated by this court.
The answer is no. As we made clear decades ago in
Martinelli, Colorado's open records laws are not
intended to "supplant discovery practice in
litigation." 612 P.2d at 1093. Once a litigant invokes
the court's jurisdiction by commencing litigation, the
rules of procedure govern discovery in that litigation,
including limits on the production and inspection of
documents.
¶31
The proper starting point for this analysis is not CORA. It
is the Colorado Constitution.
¶32
Article VI, section 21 of the Colorado Constitution
specifically vests this court with rulemaking power. Under
that provision, "[t]he supreme court shall make and
promulgate rules governing the administration of all courts
and shall make and promulgate rules governing practice and
procedure in civil and criminal cases ...." Colo. Const.
art. VI, § 21. This express power to adopt rules of
procedure for the courts is plenary and exclusive. Borer
v. Lewis, 91 P.3d 375, 380
17
(Colo. 2004); Gold Star Sausage Co. v. Kempf, 653
P.2d 397, 400 (Colo. 1982). Indeed, nearly a century ago,
this court observed that, for the legislature to enact
procedural rules for the courts, such power would have to be
surrendered by the judiciary:
We seriously question the power of the Legislature to make
any rules or to enact any laws relative to procedure in
courts. It is doubtful if the Legislature in Colorado could
have enacted any law with reference to procedure in courts of
record unless that power had been expressly or tacitly
surrendered to it by the judiciary.
Walton v. Walton, 278 P. 780, 786-87 (Colo. 1929).
¶33
"Procedural" rules that fall within the ambit of
this constitutional authority are those that are
"adopted to permit the courts to function and function
efficiently." People v. Wiedemer, 852 P.2d 424,
436 (Colo. 1993). Rules governing discovery (including limits
on the production and inspection of documents) directly serve
this objective and thus lie squarely within this court's
constitutional power to promulgate "rules governing
practice and procedure in civil . . . cases." Colo.
Const. art. VI, § 21.
¶34
"The overriding purpose of the Colorado Rules of Civil
Procedure is 'to secure the just, speedy, and inexpensive
determination of every action.'" DCP Midstream,
LP v. Anadarko Petroleum Corp., 2013 CO 36, ¶ 27,
303 P.3d 1187, 1194 (quoting C.R.C.P. 1(a)). And the express
purpose of the simplified procedures of Rule 16.1 in this
case is to "enhance the provision of just, speedy, and
inexpensive
18
determination of civil actions . . . and to limit
discovery and its attendant expense." C.R.C.P.
16.1(a) (emphasis added).
¶35
This court has recognized that "[t]he discovery process
can be abused by disproportionate and inappropriate requests
that increase the cost of litigation, harass an opponent, or
tend to delay a fair and just determination of the legal
issues." In re Attorney D., 57 P.3d 395, 399
(Colo. 2002). For this reason, "[t]he civil rules, and
our cases interpreting them, reflect an evolving effort to
require active judicial management of pretrial matters to
curb discovery abuses, reduce delay, and decrease litigation
costs." DCP Midstream, ¶ 4, 303 P.3d at
1190. Committee comments to Rule 16 make clear that active
judicial management of cases, including discovery, is
expected. See C.R.C.P. 16 cmt. 7 ("It is
expected that trial judges will assertively lead the
management of cases to ensure that justice is served.");
C.R.C.P. 16 cmt. 19 (observing the principle that
"discovery should be in proportion to the genuine needs
of the case" and that the problems of discovery abuses
"are greatly alleviated with the intervention of trial
judges placing reasonable limitations on discovery and
potentially excessive pretrial practices at the earliest
meaningful stage of the case"); C.R.C.P. 16.1 cmt. 1
(observing that the simplified procedure under Rule 16.1 was
intended to enhance the "just, speedy, and inexpensive
determination of cases," particularly cases seeking
damages of less than $100,000).
19
¶36
Consistent with these principles, Rule 26(b)(1) allows trial
courts to ensure that discovery is relevant and proportional
to the needs of the case:
[P]arties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties' relative access to
relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.
C.R.C.P. 26(b)(1).
¶37
In addition to these general limits on discovery, we have
adopted specific limits on the quantity and timing of
discovery requests-including the production and inspection of
documents. Rule 16 limits discovery to what is allowed under
C.R.C.P. 26(b)(2), unless otherwise ordered by the court.
C.R.C.P. 16(b)(11). Rule 26, in turn, limits parties to
twenty requests for production of documents and prohibits
parties from seeking discovery before the court issues a case
management order. C.R.C.P. 26(b)(2)(D), (d). Rule 16.1 is
even more restrictive, limiting parties to five requests for
production of documents. C.R.C.P. 16.1(k)(4)(B). Rule
34(a)(1) fleshes out the scope of permissible requests
"to inspect and copy any designated documents."
C.R.C.P. 34(a)(1). And Rule 34(b) establishes the procedure
for requesting items to be produced for
"inspection." C.R.C.P. 34(b). The rules also govern
the timing of the production and inspection of documents,
allowing thirty-five days to respond to requests for
production,
20
see C.R.C.P. 16(b)(11), 26(b)(2)(D), 34(b), and
permitting case management orders to establish discovery
deadlines, see C.R.C.P. 16(b).
¶38
In sum, once the trial court's jurisdiction has been
invoked through litigation, the rules of procedure
promulgated by this court govern that litigation, including
the rules of discovery that govern the production and
inspection of documents. Nothing in CORA overrides this
fundamental principle.
II.
CORA and Martinelli
¶39
Contrary to the majority's reasoning, both CORA and our
decision in Martinelli expressly recognize the
primacy of this court's procedural rules in the context
of litigation.
¶40
Under CORA, "[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),
C.R.S. (2024). The CORA exception relevant here appears in
section 24-72-204(1)(c), C.R.S. (2024). Under that provision,
a custodian of public records "shall allow any person
the right of inspection of such records" unless
"[s]uch inspection is prohibited by rules promulgated by
the supreme court or by the order of any court."
Id.
¶41
The majority acknowledges that the phrase "rules
promulgated by the supreme court" in section
24-72-204(1)(c) encompasses the rules of civil procedure.
Maj. op. ¶ 11. Our decision in Martinelli
established as much. 612 P.2d at 1093.
21
The majority then reasons that "none of the [rules of
procedure governing discovery] prohibits a CORA request
during litigation." Maj. op. ¶ 12. But as discussed
above, the Colorado Rules of Civil Procedure expressly limit
the production and inspection of documents in litigation-the
very subject matter of CORA. § 24-72-204(1) (providing a
"right of inspection" of public documents)
(emphasis added). Section 24-72-204(1)(c) acknowledges that
this right of inspection is circumscribed by rules
promulgated by this court, which include the rules of civil
procedure. Martinelli, 612 P.2d at 1093.
¶42
Put differently, CORA, through section 24-72-204(1)(c),
contemplates the existence of court rules that inhibit the
public's right to inspect documents. And our rules of
civil procedure impose express limitations on discovery,
including the right to inspect documents during litigation.
See, e.g., C.R.C.P. 16.1(k)(4), 26(b)(1),
26(b)(2)(D), 34(a)-(b). The majority's suggestion that
section 24-72-204(1)(c) requires our court rules to expressly
refer to CORA-even though they clearly apply to CORA's
subject matter-both disregards Martinelli and
elevates form over substance.
¶43
More fundamentally, the majority's analysis misconstrues
CORA's relationship to this court's rulemaking
authority. Section 24-72-204(1)(c) is not a legislative grant
of permission; rather, consistent with separation of powers
principles, it is the general assembly's acknowledgment
of this court's inherent
22
constitutional authority to promulgate rules governing
practice and procedure in civil and criminal cases.[1] We made that clear in
Martinelli when we observed that the language in
section 24-72-204(1)(c) "indicates that the legislature
did not intend that the open records laws would supplant
discovery practice in civil litigation." 612 P.2d at
1093.
¶44
I also disagree with the majority's reading of
Martinelli. There, the plaintiff sued the City and
County of Denver, the Denver Police Department, and
individual police officers in a civil action alleging police
misconduct. The plaintiff sought production of the
officers' personnel files and internal investigation
reports. Id. at 1086. The defendants objected to
discovery of these documents on the grounds that the
documents were (1) irrelevant to the plaintiff's causes
of action; (2) privileged materials; (3) protected by the
officers' right to privacy; and (4) exempted from
discovery under CORA sections 24-72-204(3)(a)(II) and
24-72-305(5), C.R.S. (2024). Martinelli, 612 P.2d at
1087. This court analyzed each of these arguments under the
rules of procedure. It evaluated the defendants' first
23
two arguments regarding relevance and privilege under Rule
26. Id. at 1087-91. In addressing the
defendants' constitutional privacy argument, the court
likewise considered Rule 26 and the possible issuance of a
protective order. Id. at 1092-93, 1093 n.4. Finally,
the court rejected the defendants' argument that the
requested documents were exempted from discovery under CORA,
reasoning that CORA did not "supplant discovery practice
in civil litigation." Id. at 1093-94.
¶45
The majority accurately states that Martinelli
stands for the proposition that "CORA does not bar
production of documents otherwise producible in civil
litigation." Maj. op. ¶ 15 (quoting Roane v.
Archuleta, 2022 COA 143, ¶ 21, 526 P.3d 220, 225).
But the point of Martinelli is that this court's
rules of procedure-not CORA-establish the applicable limits
of what is discoverable in the context of litigation. Indeed,
the Martinelli court remanded the case to the
district court with directions to conduct another in camera
inspection of the personnel files and investigation reports
and to order discovery of materials contained in those
reports, subject to appropriate protective orders. 612 P.2d
at 1094. The upshot: The rules of civil procedure governed
the litigation, not CORA.
¶46
Even section 24-72-204(5)(b) reflects the supremacy of this
court's authority and rules in the context of pending
litigation. That provision prohibits the award of attorney
fees and costs under CORA to a person who has filed a lawsuit
against a public entity and who attempts to rely on CORA
provisions for access to records
24
that instead fall within the rules of discovery (i.e.,
records that "are related to the pending litigation and
are discoverable pursuant to chapter 4 of the Colorado rules
of civil procedure"). § 24-72-204(5)(b). In other
words, section 24-72-204(5)(b) makes clear that persons who
have commenced litigation cannot use CORA to circumvent the
rules of discovery. Specifically, they may not seek attorney
fees under CORA from the public entity against which they
have brought suit.
¶47
To be clear: Outside the context of litigation, CORA governs
records requests made of public entities.[2] Individuals and organizations
may-and routinely do-submit any number of CORA requests to
public entities to gather records, often to prepare for
litigation. But once litigation commences and the court's
jurisdiction has been invoked, the rules of civil procedure
govern the discovery pertaining to that litigation.[3]
25
III.
Non-Colorado Law
¶48
Because of the uniqueness of Colorado's constitution and
CORA, nonColorado law is unhelpful here. In the federal
context, "Congress has undoubted power to regulate the
practice and procedure of federal courts." Sibbach
v. Wilson &Co., 312 U.S. 1, 9 (1941). Although
Congress has given the United States Supreme Court the power
to make court rules in the Rules Enabling Act, 28 U.S.C.
§§ 2071-2077, it has done so as a legislative grant
of authority. Article III of the United States Constitution
contains no language comparable to article VI, section 21 of
the Colorado Constitution, which directly vests this court
with rulemaking power. Thus, to the extent FOIA may conflict
with federal court rules, it does not give rise to the same
constitutional separation of powers concern present here.
¶49
Additionally, nothing in FOIA expressly allows requests to be
denied under court rules of procedure. 5 U.S.C. §
552(b). Section 24-72-204(1)(c) thus marks a material
difference between CORA and FOIA. The majority cites NLRB
v. Sears, Roebuck &Co., 421 U.S. 132, 136 (1975),
for the notion that both FOIA and CORA "seek[] 'to
establish a general philosophy of full agency disclosure
unless information is exempted under clearly delineated
statutory language.'" (Quoting S. Rep. No. 89-813,
at 3 (1965)); see also Maj. op. ¶ 22. But
section 24-72-204(1)(c) is Colorado's
"clearly delineated statutory language," which
recognizes that CORA is constitutionally limited in the
litigation context.
26
¶50
Other states' laws are similarly unhelpful. State
statutes dealing with access to public records are diverse,
and none of the statutes cited by the majority broadly
prohibit record requests that conflict with rules of
procedure or court orders, as does section 24-72-204(1)(c).
See Ind. Code Ann. § 5-14-3-4 (West 2024);
Tenn. Code Ann. § 10-7-504 (West 2024); Va. Code Ann.
§ 2.2-3705.1 (West 2024); Mich. Comp. Laws Ann. §
15.243 (West 2024); Vt. Stat. Ann. tit. 1, § 317 (West
2024). Moreover, unlike in Colorado, the constitutions of
Indiana and Tennessee do not expressly vest their supreme
courts with rulemaking power. Ind. Const. art. VII,
§§ 1-21; Tenn. Const. art. VI, §§ 1-12.
And the rulemaking authority granted to the Virginia Supreme
Court is qualified, in that "such rules shall not be in
conflict with the general law as the same shall, from time to
time, be established by the General Assembly." Va.
Const. art. VI, § 5. Finally, if anything, the pending
litigation exceptions found in Michigan and Vermont's
public records acts effectively confirm the constitutional
rulemaking power granted to the supreme courts of those
states. Mich. Comp. Laws Ann. § 15.243(1)(v); Vt. Stat.
Ann. tit. 1, § 317(c)(14). Given the diverse
constitutions and statutes across this country, the law from
other states cited by the majority does not support its
position.
IV.
The Impact of Today's Ruling
¶51
The impact of today's ruling is far-reaching. Although
this case involves a single request for production of
documents in a simplified Rule 16.1 proceeding,
27
today's decision will affect all civil litigation. By
ceding this court's plenary and exclusive authority to
promulgate rules governing the production and inspection of
documents in litigation, today's decision effectively
nullifies our discovery rules in civil litigation involving
public entities subject to CORA.
¶52
After today, litigants who sue public entities can file
unlimited CORA requests for the inspection of documents they
would otherwise have to acquire through the rules of
discovery. And they can do so without regard to discovery
deadlines or limitations. This subverts both Rule
16.1(k)(4)(B) and Rule 26(b)(2)(D)'s numeric limit on
document requests. It also subverts Rule 16's discovery
deadlines, which provide that discovery must be completed
"not later than [forty-nine] days before the trial
date." C.R.C.P. 16(b)(11).
¶53
If, as the majority holds, CORA represents a freestanding
statutory right to inspect documents, then private parties
can arguably ignore any timelines a court may set under a
Rule 16(b) case management order.[4] And while C.R.C.P. 34(b) gives
litigants thirty-five days to respond to a discovery request,
CORA requires documents to be available for inspection within
three to seven working days. § 24-72-203(3)(b). Thus,
public entities faced with CORA requests in lieu of
28
requests for production will have to turn over documents in
an expedited manner-and must respond to such requests even
after discovery deadlines have passed. Litigants can also use
CORA to bypass relevancy and proportionality requirements in
the discovery rules. C.R.C.P. 26(b)(1) requires trial courts
to ensure discovery is proportional, meaning that discovery
requests are relevant to the claims and defenses, that the
costs of discovery do not outweigh its benefits, and that the
amount of discovery is proportional to the amount in
controversy and to the complexity of the issues. But after
today, private litigants can make unlimited CORA requests of
public entities during litigation, regardless of relevance or
proportionality to the needs of the case. This will have an
especially profound effect in Rule 16.1 cases, which are
specifically intended to "limit discovery and its
attendant expense." C.R.C.P. 16.1(a).
¶54
What is particularly unsettling about today's ruling is
that it results in an uneven playing field in litigation for
state agencies and local government entities subject to CORA.
Those entities must abide by discovery limits and deadlines,
but after today's ruling, their private opponents need
not do the same. Indeed, a private litigant could submit a
flurry of CORA requests simply to overwhelm an opposing
public entity during litigation, including on the eve of
trial. The potential impact on public entities cannot be
overstated.
29
¶55
Any suggestion that a trial court can simply manage this new
environment by regulating the admission of documents on the
back end is wishful thinking and is unfair to our trial
courts. The majority notes that its opinion should not limit
courts' ability to "otherwise regulate discovery and
the admissibility of evidence in [an] action" and that
"[r]ecords and information obtained under CORA are not
immune from scrutiny under the governing procedural and
evidentiary rules." Maj. op. ¶ 27 n.2. But it is
unclear how a trial court could be expected to use procedural
or evidentiary rules to limit the impact of today's
ruling on the management of discovery in litigation.
Even if a trial court could preclude the admission of
documents obtained through CORA, additional hearings will
likely be necessary to determine which documents a party
obtained through which request. These issues will spawn
additional litigation, including by injecting appealable
issues into the case. Such an approach undermines the intent
of the rules of civil procedure, which require active
management of the discovery process to secure the "just,
speedy, and inexpensive determination of every action."
C.R.C.P. 1(a).
¶56
Finally, all of these impacts could be readily avoided.
Roane's single request does not appear to have violated
any rule or court order (at least, Archuleta County has
failed to identify any such violation). The underlying case
between Roane and Archuleta County was subject to the
simplified procedures in Rule 16.1,
30
and thus Roane was entitled to five document requests.
C.R.C.P. 16.1(k)(4)(B). His request for the recording was the
only request for any record. Further, Rule 16.1(f) does not
require the court to issue a case management order, and it
does not appear that the district court issued any such order
or set any specific discovery deadlines. Accordingly,
Roane's request did not violate any rules of civil
procedure or court orders. To resolve the dispute before us,
I would simply construe Roane's request as a proper
discovery request and allow it.
V.
Conclusion
¶57
Colorado's Constitution squarely vests this court with
exclusive authority to promulgate rules governing practice
and procedure in civil and criminal cases. Today's
decision unnecessarily relinquishes that power despite
CORA's express recognition of our rulemaking authority,
and despite our rules specifically limiting the production
and inspection of documents in litigation. As we said in
Martinelli, CORA was not intended to "supplant
discovery practice in civil litigation." 612 P.2d at
1093. But after today, I fear that CORA will be used to do
exactly that.
¶58
Our rules of civil procedure demand active management of
discovery in litigation to secure the just, speedy, and
inexpensive determination of every action. Evenhanded
application of those rules ensures equal treatment of all
parties who come before our courts, including government and
public entities. Today's decision not only upsets decades
of settled expectations under Martinelli, but it
31
upends the litigation playing field and will negatively
impact government and public entities subject to CORA.
¶59
I respectfully concur in the court's judgment only.
I am
authorized to state that JUSTICE SAMOUR joins in this
concurrence.
---------
Notes:
[1] We granted certiorari to review the
following issue:
1. Whether the lower courts committed reversible error
by allowing a party, who is litigating a civil action against
a public entity, to use an open records request to obtain
documents relevant to the pending litigation[] instead of
complying with the rules of discovery as set forth in the
Colorado Rules of Civil Procedure.
[2] Article VI, section 21 of the Colorado
Constitution vests this court with the power to "make
and promulgate rules governing practice and procedure in
civil and criminal cases." But this court has not
promulgated a rule prohibiting the use of CORA by litigants.
Therefore, we need not address any separation-of-powers
concerns that arguably exist in this context.
[3] Nothing in this opinion should be
construed to limit the authority of the court presiding over
the declaratory-judgment action to otherwise regulate
discovery and the admissibility of evidence in that action.
Records and information obtained under CORA are not immune
from scrutiny under the governing procedural and evidentiary
rules once a party seeks to deploy them as evidence in a
civil proceeding. Legal authority to obtain records does not
automatically bestow authority to use those records in
court.
[1] Section 13-2-108, C.R.S. (2024),
likewise recognizes our inherent constitutional authority to
govern court procedure. That provision reiterates that the
supreme court has the power to create rules of "practice
and procedure in civil actions and all forms in connection
therewith." Id. As we observed over a century
ago, section 13-2-108 "was not a delegation of
legislative authority. The regulation of its own practice and
procedure has always been a matter for the court ...."
Ernst v. Lamb, 213 P. 994, 995 (Colo. 1923).
[2] The Public Access to Administrative
Records Rules ("P.A.I.R.R.") govern requests for
administrative records of the Judicial Department. P.A.I.R.R.
2 states, "This rule is intended to be a rule of the
Supreme Court within the meaning of CORA, including section
24-72-204(1)(c) ...." Although the majority appears to
suggest that the Civil Rules Committee could simply
incorporate similar language into the rules of civil
procedure, see Maj. op. ¶ 12 & n.2, it is
unnecessary. It is clear that the rules of civil procedure
are "rules promulgated by the supreme court."
§ 24-72-204(1)(c); Martinelli, 612 P.2d at
1093.
[3] A party is free, of course, to rely on
CORA to seek records from a public entity that are unrelated
to the specific litigation at hand. In any event, the
majority's hypothetical "line-drawing" concerns
should not preclude us from resolving the case on the facts
here. See Maj. op. ¶ 12. It is undisputed that
Roane requested the recording at issue for use in this
litigation. Roane, ¶ 6, 526 P.3d at
223.
[4] I acknowledge that today's
decision seems to leave open the possibility that a case
management order could expressly prohibit the parties from
using CORA to obtain discoverable documents.