Although members of the Colorado Supreme Court appeared wary on Tuesday of finding a large swath of the government can be deemed a “criminal justice agency,” they also recognized lawmakers used broad language to seemingly sweep public entities into that category.

The case at hand questions whether the Peace Officer Standards and Training (POST) Board, as the agency that certifies and decertifies law enforcement officers, is a criminal justice agency. If so, its records are subject to more stringent disclosure guidelines.

Previously, the state’s Court of Appeals concluded POST met the definition of a criminal justice agency. Its collection and storage of criminal records during the decertification process fulfilled the requirement that a criminal justice agency “performs any activity” related to criminal records.

Complicating matters, the Supreme Court recognized many professional licensing agencies that have nothing to do with policing may also come into contact with criminal history documents. Still, members of the court seemed to accept that even minimal handling of criminal records would count as “any activity.”

The legislature “has written our criminal justice records law in much broader terms than a number of other states have. And that was their choice,” said Justice Melissa Hart. “In some other instance — say the Dental Board was here, instead of POST — we might be saying, ‘Huh, is this really what they meant?’ And that might be the absurd-result case. But that’s not what we have here.”

The case, spurred by the reporting of Christopher N. Osher at The Gazette in Colorado Springs and of the Invisible Institute in Chicago, implicates the wide discretion government agencies have to deny open records requests when they fall under the label of “criminal justice agency.” Clarity Media Group, the parent company of Colorado Politics, also owns The Gazette and The Denver Gazette. Osher leads the investigative team of the Gazette family of newspapers.   

Beginning in 2019, Osher and the Invisible Institute sent a series of requests to POST seeking data about the law enforcement officers certified and decertified in Colorado. The Department of Law, which is home to POST, determined the requests were subject to the Colorado Criminal Justice Records Act, which allows for greater withholding of information than the state’s primary disclosure law, the Colorado Open Records Act.

“Publicly disclosing the names of peace officers in response to your request threatens harm to ongoing investigations and to the safety of peace officers,” a spokesperson for the attorney general’s office wrote in response to one request.

The Gazette and the Invisible Institute then asked a judge to find the government had abused its discretion by failing to balance the privacy interests of officers with the public’s interest. Also, they maintained POST could not be a criminal justice agency because it actually operated more akin to a licensing agency — like the state’s Dental Board or Department of Motor Vehicles.

Denver District Court Judge J. Eric Elliff agreed POST was a criminal justice agency and that the records custodian acted within her discretion by denying the request.

The plaintiffs appealed to the Court of Appeals, where a three-judge panel appeared uncomfortable that any state body handling criminal records as part of its licensing duties is legally a criminal justice agency with a robust shield over all its files. Nonetheless, they conceded the broad language about the collection and storage of criminal records applied to POST’s revocation process for peace officers.

“In doing so, the General Assembly sought to convey that a criminal justice agency is one that performs any of the enumerated activities,” wrote Judge Robert D. Hawthorne.

During oral arguments to the Supreme Court, the plaintiffs maintained it made no sense to deem agencies that have any interaction with criminal records a criminal justice agency. But Justice Carlos A. Samour Jr. pointed out the director of POST testified he occasionally investigates officers’ alleged misconduct using law enforcement techniques.

“It just says ‘any activity’ — any activity,” Samour emphasized.

At the same time, “I don’t know if you ask the average person on the street, ‘Is the Dental Board a criminal justice agency?’ most people would say yes to that,” said Chief Justice Monica M. Márquez.

Some justices wondered if it was possible to deem a governmental body a criminal justice agency based on some threshold of activity relating to criminal records.

“Does that impact how we analyze this? If it’s 2%, 5%, 10% of what they do?” asked Justice Brian D. Boatright.

No, responded Assistant Solicitor General Brittany Limes Zehner, because of the words “any activity.” At the same time, she acknowledged lawmakers may want to re-evaluate the sweeping nature of the definition.

“Ultimately, that’s our General Assembly’s prerogative to decide,” said Zehner. “And to the extent the legislature wants to take another look at that, that’s their prerogative. But it’s not for this court to rewrite the statute.”

Unusually, the court and the parties repeatedly invoked an entity that was not part of the litigation — the Dental Board — when exploring the potential absurdity of deeming the board a criminal justice agency for records purposes just because its licensing activities touch on applicants’ criminal histories.

In response to an email from Colorado Politics, the Dental Board declined to say whether it considers itself a criminal justice agency.

The case is The Gazette et al. v. Bourgerie.