And It Begins Anew

As many of you are aware, the district has decided that legal bills are “protected”, and not subject to Open Records Requests…and of course, I disagree.

So, to test this, I submitted an Open Records Request for legal bills paid by the district (click on the images to zoom):

And, as expected, I was turned down:

Note the reference they used for refusal is CRS 24-72-304(3)(a)(IV):

CRS 24-72-304(3)(a) The custodian shall deny the right of inspection of the following records, unless otherwise provided by law; except that any of the following records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest under this subsection (3):

(IV) Trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data, including a social security number unless disclosure of the number is required, permitted, or authorized by state or federal law, furnished by or obtained from any person; (emphasis mine)

Apparently they are hanging their hat on the “privileged information” clause:

Attorney-Client Privilege. Because the Open Records Act specifically authorizes denial of inspection of “privileged information” in Colo. Rev. Stat. § 24-72-204(3)(a)(IV), common law attorney-client and attorney work product privileges are incorporated into the Open Records Act. Hence, communications between attorneys and clients and materials prepared by an attorney in anticipation of litigation are not public records subject to inspection. Denver Post v. University of Colorado, 739 P.2d 874, 880-81 (Colo. App. 1987).

However, there have been many cases decided where legal bills are not protected — the advice is, obviously –  (although the “client” — in this case the board — can waive that)…but not the bills, which detail expenditure of public funds….your money.

For example, see Hunterdon County Policeman’s Benevolent Association Local 188 v. Township of Franklin, 286 N.J. Super. 389, 394, 669 A.2d 299, 302 (App. Div. 1996) (affirming trial court’s holding that billing records are not privileged and are, therefore, accessible under former Right-to-Know law):

In the experience of this court, [attorney billings] will contain a few word description of the general category of the work performed, the number of hours required to perform the work, the date of the performance, and the total cost to the client.” Id. (quoting lower court). In addition, no privilege would attach to the dates on which work occurred, who performed them, or the time spent on those tasks.

Therefore, the Records Custodian violated OPRA because she did not give a specific, legal basis for redacting the records she produced. In addition, assuming that the basis for the redaction is the attorney-client privilege, that privilege does not apply to legal billings unless they reveal client secrets or reveal legal advice or strategy.

See also this article and this article.

Why did I submit this request, knowing that it would be turned down?  Because now I am an “Aggrieved Party”, or whatever the term is…and I have legal standing.  Until they denied me, I had no basis of complaint, and could not seek “redress”

Funny how this works, isn’t it?

So, next comes the Demand Letter…and after that, we let the court decide…and if I read the statute correctly, this time the district cannot claim “governmental immunity”(see this post and this document):

Costs and attorneys’ fees. Attorneys’ fees shall be awarded to a person who has been denied access to public records and who subsequently prevails after applying to a court to have such records made open. CRS §24-72-204(5)

An interesting thing about the Colorado Open Records Act…they are weighted heavily toward the public’s right to know.  You don’t have to have a reason for asking…heck, you don’t even have to be a citizen of  the United States to ask — and except for a very narrow set of exceptions that are codified under statute, they cannot turn you down…and there are penalties for them doing so.

Also, to answer a question on Falconlady.com (Comment #24):  Performance evaluations (and lots of other “personnel record data”) is indeed “public record”..

Personnel files, except applications and performance ratings, are expressly exempted from inspection by Colo. Rev. Stat. § 24-72-204(3)(a)(II).

“Personnel files” as defined by Colo. Rev. Stat. § 24-72-202(4.5) does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. See Freedom Newspapers Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998).

For more information, please see the following sources:

• Colorado Revised Statutes (click on “Colorado Revised Statutes”, then “Title 24″, then “PUBLIC (OPEN) RECORDS”)
• Colorado Open Government Guide
• Sunshine Review
• Common Cause Colorado

I wonder if The Lawyer™ giving legal advice such as this constitutes malpractice?  It wouldn’t be the first accusation.

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I know many of you will be asking “Why are you picking this fight?”

I could argue that we have the right to know.  I could argue that this is yet another example of “selective enforcement”.

However, I am doing it because without having access to district expenditures, there is no accountability or checks on district spending.  We are told we have to “take their word for it”.

I don’t.

Update 7 March 2010

Lots of interest in this…as expected.  So, to answer some questions:

1) Who’s paying for this?

I am.

2) Won’t you just be costing the residents more money?

Depends.

If it goes to court, and the court finds in my favor, yes.  It’s an odd situation, as I would still be paying for part of it myself.

If the court does not find in my favor, no.  I will most likely have to pay the district’s costs.  Why would I risk that?  Because I am tired of this ‘secret squirrel’ attitude. It’s our money!

However, it doesn’t have to cost a dime — the board can just vote to rescind their policy.  I will be asking for just that at the next board meeting…anyone want to name odds?

3) What are you trying to prove–or are you just trying to embarrass the district board again, like you always do?

Actually, this time I’m not trying to embarrass anyone…I know, hard to believe

What I’m trying to do is two-fold:

1. The district thinks they have the final say on what is “public record” and what is not.  Fact is, they are right – unless someone calls them on it.  Those of you that have been reading this site for a while know that I believe strongly in open government…so this “I’m not going to tell you” arrogance amazes me…and I’m putting my money where my morals are.  The district also tried to assert that infamous Salary Survey was protected as a “work product” … never mind that it was a finished product, published by an outside agency, for which the district expended funds.
2. The district claims to have spent $41,526.65 on pursuing their restraining orders (see this document, or this one on the district’s website;  I copy everything down from their website now, as things tend to change).  I pointed out in this post that this figure doesn’t pass the “sniff test”.  I have now been provided a copy of Mr. Daily’s billing log, in which he shows a total of 489.4 hours expended on this issue (click on the image to zoom):

   
   The total cost to the defendant was $121,232.50 (discounted to $76,757.00).  Anyone here truly believe the district only spent $41K?

   • Let’s see…assume the same number of hours;  the total hours is probably much higher, as the district has been pursuing this since December 2008 (as I will show shortly)…however, for the sake of argument, let’s say the number of hours expended are the same.  $41,526.65 / 489.4 hours = approximately $84/hour — wow, who knew The Lawyer™ worked so cheap?
   • But wait!  We also have to add in Larry Bishop’s time in court — he was there all 16 half-days (court time determined by the court ruling), or 8 full days — instead of working district manager issues (who was watching the shop?)  In this post, I showed Larry earning an hourly rate of  $62.50 per hour (assuming 40 hrs/week).  $62.50 per hour x 64 hours = $4,000.00.

   So, my point:  It’s only by having access to the billing statements can we prove or disprove the district’s assertion.  If they are right, I’ll be the first to say so, and will do so right here on this website.

Update 8 March 2010

In tennis, I think the term is….

“Service…”

Carrying on with the Tennis analogy, the ball is in the district’s court now.

Also, Mr. Daily provided me with more detailed billing statements to back up the hours charged; however, the documents I received do not cover all charges, so pending a complete accounting I have removed them from this post.

The detail is the same format The Lawyer™ uses, and gives the same level of detail:

See any “client secrets”, “legal advice”, or “strategy” in there?

I don’t either.