May 10, 2010

Attorney General's Office Open Records Request

On May 4, 2010, the Attorney General’s Office issued a broad open records request to approximately 50 school districts.  The request relates to the school finance adequacy lawsuit known as Lobato v. State of Colorado. 

The Lobato lawsuit challenges both the state system’s level of funding and the method of determining funding.  On March 1, 2010, the Plaintiffs, including fifteen (15) school districts, filed their amended complaint in the Denver District Court.  This action recommenced the trial process following the Colorado Supreme Court’s October 2009 decision allowing the case to go forward.  The Attorney General (“AG”) represents the State of Colorado, the defendant in this action.  The AG’s office filed the answer to the amended complaint on April 30, 2010. 

The case has not yet been scheduled for trial, but the plaintiffs believe that a trial will occur in mid-2011.  Both parties are now beginning preparations for trial, including “discovery” in which each side seeks out information that it believes is necessary to prepare for trial. Generally, the court in which the trial will be held will manage the discovery for the named parties, i.e. school districts that are actual plaintiffs in the case. 

The AG issued the current open records requests to non-plaintiff Colorado school districts.  We understand that the AG’s office intends to send this request to every non-plaintiff school district, so some school districts may receive this (or a similar) request at a later date.  CASB understands the AG’s action was taken without the prior knowledge of the plaintiffs or their lawyers and is not related to whether school districts have financially or by resolution supported the litigation.

In terms of responding to the AG’s request, Colorado’s Open Records Act (“CORA”) generally requires public records to be made available within three (3) working days and allows up to seven (7) working days in extenuating circumstances. C.R.S. § 24-72-203.  CASB spoke with Carey Taylor Markel of the AG’s Office today, May 10, 2010, and Ms. Markel agreed to allow any and all districts until June 14th to respond to the CORA request.   In order to be covered by this general extension, school districts must:

1. Take the extension by notifying the AG’s office in writing either through the school district’s own attorney, by responding in writing to CASB requesting to be included on the list of school districts seeking the extension (and receiving a confirming email), or directly with the AG’s office; and,
2. Send written correspondence to the AG’s office within the next ten (10) days outlining the anticipated scope of the school district's response and associated costs, i.e. number of pages and estimated copying costs.[1] With this information, the AG's office will determine whether to request access to or copies of the requested information.  These determinations will be made by the AG’s office and communicated directly to school districts or their attorneys.
3. Comply with the AG’s records request by June 14th.  

With the exception of requesting that CASB include a school district on the list of those seeking a general extension, school districts should communicate with the AG’s office directly or through their own school district attorney as to all other aspects of compliance with the records request.  CORA is a technical statute with penalties for noncompliance. 

This Legal Update is intended to ease CASB’s members’ burden of complying with the AG’s request within CORA’s timelines. 

As always, we encourage Boards to work closely with the school district's counsel to obtain legal advice regarding compliance with the CORA in this and all specific situations.