Colorado’s second-highest court last month clarified a draft report that is not subject to any meaningful decision-making by elected officials is a disclosable document under the state’s open records law.

A three-judge panel for the Court of Appeals agreed Durango was required to disclose a draft of its 2021 financial report under the Colorado Open Records Act (CORA). Although the law excludes “work product” that assists elected officials in reaching a decision, the panel noted Durango had not shown how the document fell into that category.

Specifically, wrote Judge Katharine E. Lum in the March 28 opinion, Colorado law requires local governments to forward their annual audit report to the state. Because the city’s audit was part of the financial report and there was no evidence elected council members had any meaningful decision to make before transmitting the audit, Lum explained the draft was not work product after all.

“Where the elected officials have the authority to take only one action, there is nothing to ‘decide’ within the meaning of CORA’s work product definition,” she wrote.

Even if the report counted as work product, Lum added, it must be “prepared for” the elected officials. There was no indication city council members could influence the contents of the report prior to forwarding the final copy to the state, so the draft was not “prepared for” them.

“We are not persuaded otherwise by the City’s argument that a document need only be ‘related to’ or ‘tethered to’ a decision made by elected officials in order to be exempt from disclosure,” wrote Lum. “Such a broad reading would sweep in virtually all documents produced by any city department.”

Although the Court of Appeals’ opinion addressed governments’ obligation to disclose documents that are the subject of a largely non-discretionary decision-making process, the panel cautioned it might have reached a different conclusion had Durango offered a better explanation about how much authority its elected officials had over the final product.

The lawsuit against the city began after John Simpson requested the 2021 financial report the day after Durango produced its draft in August 2022. The clerk declined to provide the document, claiming it was work product under CORA.

La Plata County District Court Judge Suzanne F. Carlson agreed the law requiring local governments to forward their final audits to the state meant the city council had no “deliberative decision to make” about the report. She conceded the council could theoretically vote to withhold the final document, but any deliberations occurred within the finance director’s office, not among the elected officials.

“The parties agree the draft versions were not requested by or sent to any member of City Council prior to the date of Plaintiff’s CORA request,” Carlson added.

The city appealed, arguing CORA does not require documents to be seen by elected officials in order to be shielded from disclosure. 

“So long as the document can ultimately be traced to a decision that must be made by an elected official, the statute does not require that the elected official actually review the document to retain work product privileges,” wrote attorney Nick Poppe, elaborating that governments would have an incentive to share every draft with an elected official to prevent disclosure.

During oral arguments in January, the appellate panel was similarly concerned that a document’s disclosure under CORA should not hinge on whether an elected official sees it first.

“To me, a lot of stuff seems to be hanging on this notion of ‘did it get before their eyes or not,’ which seems to create a way around this that isn’t terribly helpful and not within the spirit of CORA,” observed Judge Craig R. Welling.

Attorney Matt Roane, representing Simpson, responded that in the case of Durango’s 2021 financial report, the draft neither reached council members’ eyes nor related to a choice they had to make.

“If it’s not discretionary — you have to do it — you don’t need to protect the thought process that goes into it. There’s no need for debate if it’s mandatory,” Roane said.

The panel ultimately agreed that the lack of a meaningful council choice about the financial report, other than to send it to the state as required, did not qualify the draft as work product prepared for elected officials. 

The case is Simpson v. Harmer.