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Open records petition awaiting judge's ruling

 

November 24, 2017

Courtesy Photo A photo of redacted emails and other documents from the Boulder County Commissioners that were released after CORA requests. A district judge recently heard a case brought against the county for violation of the open records and open meetings acts by only releasing documents this heavily redacted, among other things.

An open records and open meetings petition filed against Boulder County by Gunbarrel resident Kristin Bjornsen went before a judge for a hearing earlier this month, but the verdict is still out as the judge took it under advisement.

Bjornsen first filed a request for records containing Twin Lakes-related documents that have been heavily redacted. Under the Colorado Open Records Act (CORA), citizens can petition a judge to order an entity to provide these records.

Bjornsen’s complaint specifically listed the following redacted and/or withheld documents.

  • Emails from an elected official to a quorum of other elected officials (which constitutes a public meeting) that were redacted as work product.
  • The drafts of a lobbying email from an appointed director to members of the public asking them to support pending legislation. The drafts are being withheld as work product.
  • A privilege log for a document withheld under attorney-client privilege.
  • In camera review of a document redacted as a personal comment.

Bjornsen said that when trying to do research regarding the issue with Twin Lakes, she came across things that did not seem right.

“What prompted me to do it was that the information the county was giving us in public regarding the Twin Lakes was very different than what people were receiving from CORA requests,” Bjornsen said.

From there, she said more and more issues came to light, and according to her complaint, the county did not properly answer her requests.

Each email she sent asking for information was forwarded to the county attorney’s office, which said she had to file a CORA request, with no response from county commissioners.

“Some of the things that came back redacted I had no problem with. I understand things need to (be redacted),” Bjornsen said. “But some seemed strange, like an executive session for attorney-client privilege with no attorney on the email, and were being sent to a third party.”

She even had to file a CORA request to get a copy of the county’s procedure on submitting CORA requests.

“It’s definitely been an eye-opening process for me,” Bjornsen said. “I have always implicitly trusted Boulder government, and I often didn’t pay attention because I trusted it so much. Now I realize that we all have that duty to stay engaged and protect our liberties.”

The other side of her complaint that was bifurcated by District Judge Thomas Mulvahill involves an alleged violation of the Colorado Open Meetings Law.

This portion of her complaint states that there were:

  • three executive sessions that were authorized "after the fact,"
  • four that had no subject matter given,
  • one session (on Real or Personal Property Sales and Acquisitions) that was never electronically recorded,
  • and five to seven sessions that took place (some via email with a quorum) outside of a regular or special meeting (depending on whether "administrative meetings" count as a regular or special meeting).

This part of the complaint has been submitted to the court on a motion for summary judgment, which Mulvahill will decide without taking testimony. A date for this decision is unknown as well.

At the hearing earlier this month, Bjornsen represented herself.

“I walked into the courtroom, they had three attorneys and a paralegal and I just had myself,” Bjornsen said. “It was my first time ever in a courtroom, so that was intimidating in itself.

“It seemed like ‘trial by ambush’ because the county had a lot of surprise testimony that I had no idea they would present and had no time to prepare for cross examination. It was a surreal experience, because I felt like if I knew those magical legal words to say, then it would have gone a lot differently.”

She said that the county’s attorneys objected to many of her exhibits that their own witnesses later testified on.

Bjornsen had a pro-bono attorney in September who wrote the original complaint, but later withdrew from the case. She has continued to speak with the Colorado Freedom of Information Coalition, along with other organizations.

“I think this is a case where I just got out-lawyered,” Bjornsen said. “The law didn’t win, it’s just who has the most money who prevailed. The Washington Post’s motto says ‘democracy dies in darkness.’ I think that we all have a duty to fight for transparency in our government … I try to keep it in perspective. I still firmly believe that the law is on my side in all of these issues.”

Bjornsen has to wait for Mulvahill’s decisions on both issues, but said that she only wants for the county to be as open as possible when it comes to the taxpayer, something she alleges they have not done.

“It indicates that the commissioners are making decisions behind closed doors and then moving in lock step once they get in the public meeting,” Bjornsen said. “What we see at the public meeting seems to be so scripted. That deprives the public from seeing the process in action. We don’t know how decisions are being made, we don’t know what’s going on. That’s the reason I filed this,… for transparency.”

 

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