Colorado’s second-highest court clarified on Thursday that relief is only available when the judiciary denies access to certain public records, with no consequence if the records are simply delayed.

Although the Colorado Open Records Act is the state’s primary disclosure law, administrative records from the judicial branch are disclosed pursuant to a policy known as “PAIRR 2.” The state Supreme Court used the open records act as a guide when crafting the rule, but deviated “for clarity and to better serve the public.“

Among other things, PAIRR 2 allows a person to file a petition in court if they are denied access to records. The question presented by Jonathan Warnick’s petition in Jefferson County, however, was whether a person could mount a court challenge if the judicial branch delayed its disclosure of the requested information.

No, said a three-judge Cout of Appeals panel.

“PAIRR 2 allows for an action only when a person has been denied inspection of a record,” wrote Judge Karl L. Schock in the Jan. 16 opinion.

The panel had previously issued its decision in Warnick’s case in October. However, the Colorado Attorney General’s Office asked the court to reissue its ruling as a “published” decision — meaning one that sets a precedent for trial judges to follow.

Because the Court of Appeals had never addressed what happens when a judicial records request is delayed, the “opinion provides direct, specific guidance on this issue, and would be an important resource for litigants and courts,” argued the office.

The court agreed and re-released the opinion, adding more background information in the process.

Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition, expressed concern about the potential delays a person may encounter when requesting records from the judicial branch.

“Colorado public records rules and laws are weaker if there’s no way to enforce the response deadlines built into them. If there are no consequences, there’s nothing to stop records custodians from delaying the production of records by days, weeks or months even,” he said. “That’s something we’d like to see changed.”

In the underlying case, Warnick sought transcripts from hearings in his domestic relations case. In September 2023, he requested the dates that the transcriptionist received the audio recordings. He argued a delay in receiving the transcripts had affected his ability to appeal.

The records custodian for the First Judicial District indicated she was researching Warnick’s issue, although the government acknowledged she had a “misunderstanding” of the request. 

In October, one month after his initial request, Warnick filed a complaint seeking access to the records. Eventually, the judicial district sent documents to Warnick and notified the court in late January that “all responsive documents” were handed over.

On Feb. 20, 2024, District Court Judge Todd L. Vriesman dismissed Warnick’s complaint.

There is “no claim for damages or delay in responding to record inspection requests,” he wrote. Therefore, because there was no denial of access to the records, Warnick had no claim.

Representing himself, Warnick pointed the Court of Appeals to language in PAIRR 2 requiring records to be made available at “reasonable times,” with responses to be given in three business days.

“The language does not provide a choice to delay and hope it goes away,” he argued.

Schock, in the appellate panel’s opinion, reiterated that Warnick’s request was never “denied,” although he waited four months to receive the files.

“Even in his complaint, Warnick alleged only that the First Judicial District had refused to respond to his request, not that it had denied it,” Schock wrote. “Thus, when all responsive records have been made available, the rule does not provide for any additional relief.”

The case is Warnick v. Court Administration of 1st Judicial District et al.