News outlets take fight for access to police certification database to Colorado Supreme Court

Update: On Feb. 26, 2024, the Colorado Supreme Court agreed to hear the case.

More than two years ago, The Gazette, a Colorado Springs newspaper, and the Invisible Institute, a Chicago-based nonprofit newsroom, sued the director of the Colorado Peace Officer Standards and Training Board for access to a database containing records about the certification and training of law enforcement officers in Colorado.

The news outlets, represented by Rachael Johnson, the Reporters Committee’s Local Legal Initiative attorney for Colorado, argued that the POST Board had unlawfully denied their public records requests for the data by claiming that access to its records were governed by the Criminal Justice Records Act. That law, which applies only to records created by criminal justice agencies, is much more restrictive than Colorado’s Open Records Act, which governs access to the vast majority of public records in the state.

In the lawsuit, the news outlets urged the Denver County District Court to declare that the POST Board is not a criminal justice agency and require it to provide access to the requested database in a searchable and sortable format, at no cost — as is required under the Open Records Act.

Since then, however, the district court and the Colorado Court of Appeals have each sided with the POST Board, concluding that it is a criminal justice agency governed by the Colorado Criminal Justice Records Act.

Now, the Gazette and the Invisible Institute have filed a petition for writ of certiorari asking the Colorado Supreme Court to review the case. We recently spoke with Johnson to learn more about her clients’ fight for these police certification records and why it’s worth taking it to the state’s highest court.

Why should the records kept by the POST Board be governed by the Open Records Act instead of the Criminal Justice Records Act?

The POST Board is an agency that licenses police officers. Its powers and duties are administrative and limited to revoking or certifying police officers, providing trainings, distributing grants, and ensuring that the professional standards required of police officers are met. These activities are demonstratively similar to what any other licensing agency across the state is obligated to do for its own professionals, and we’ve made comparisons to the Dental Board, the DMV, the Pharmacy Board, or any other licensing agency.

Many of these agencies, like the POST Board, perform background checks and review criminal records information to determine if they can suspend or revoke a professional’s license. Yet, the courts held that POST Board is a “criminal justice agency” because it “collects and stores arrest and criminal records information” to “revoke” an officer’s license. So, because it is a “criminal justice agency,” all of its records are governed under the Criminal Justice Records Act rather than the Open Records Act.

This ruling permits any state agency that licenses teachers, for example, to deny access to any of its records on the ground that it “collects and stores” background check or arrest record information. We’ve argued that the legislature did not intend to make the POST Board a “criminal justice agency” for all purposes; what’s even more astonishing is that the POST Board has released, and releases, records to the public in response to Open Records Act requests.

How common is it for agencies in Colorado to cite the Criminal Justice Records Act over the Open Records Act?

I’ve seen agencies cite the Criminal Justice Records Act, when the relevant statute is the Open Records Act, in instances where a reporter sought records from the Department of Revenue or where there’s any argument that can be made that the work of the agency touches law enforcement. For example, in 2020, the Colorado Legislature enacted the Law Enforcement Integrity Act, which is a completely separate provision from the Criminal Justice Records Act and mandates that a police department release body camera footage. Instead of citing that new law in response to requests for bodycam videos, police agencies have sought to withhold footage under the Criminal Justice Records Act.

Agencies seem to like the Criminal Justice Records Act because it provides public records custodians greater flexibility when deciding whether to disclose certain records or shield them from the public. More often than not, the law gives custodians unfettered discretion to deny access to records for any reason. While that may be good for the agencies, it’s bad for members of the press and the public.

Think about it this way: If you’re trying to access information from a particular agency but you don’t know the ins and outs of Colorado’s public records laws, receiving a rejection that cites the Criminal Justice Records Act could stop you from continuing to pursue the information — even though it may actually be subject to disclosure under the Open Records Act or another less-restrictive law. This unnecessary barrier to access prevents members of the public from better understanding how their government operates.

Why are you asking the Colorado Supreme Court to weigh in on this case?

We think that the improper designation of the POST Board as a “criminal justice agency” carries broader implications for public records access across the state. Unfortunately, the appeals court’s opinion means that any agency that collects background check information or reviews the arrest or criminal records of one of its professionals to revoke his/her license falls under the definition of a criminal justice agency. For example, if the state Pharmacy Board should review a pharmacist’s guilty plea to a crime, the Pharmacy Board is a “criminal justice agency” and that record, or any others from the agency, would potentially not be disclosed to the public. And members of the public have a right to know if their pharmacist has been disciplined for criminal offenses.

The POST Board case is also one of first impression for the Colorado Supreme Court. There’s no Colorado Supreme Court decision that discusses whether a licensing agency meets the definition of a “criminal justice agency” under the Criminal Justice Records Act simply because it collects and stores background checks. Finally, the POST Board defines itself as a regulatory agency, not a “criminal justice agency,” and that is directly in conflict with the legislature’s intent under the POST Act, which created the POST Board to “certify and train” officers. We hope that the Supreme Court will see these exceptional circumstances related to access and agree to review the case.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.