City: $1,300 for e-mails on gravel pit

Critic of proposal balks at price tag for official records

Carrol Zehner got more than she bargained for when she submitted a Colorado Open Records Act request about a proposed gravel pit in her Orchard Mesa neighborhood.

Zehner, who requested nine months of e-mail conversations between City Council members, planning commissioners and other city staff about the mining operation, was told the request was going to cost $1,300. She would need to pay half up front.

“I don’t have the money to put down,” Zehner said. “I believe that’s what the city is banking on, that we’re not going to have the money to pay it. It really raises my suspicions to what is out there.”

According to the Colorado Open Records Act, otherwise called CORA, some government records, including e-mails, should be open for public inspection at reasonable times, and the cost of copies is not to exceed 25 cents per page. However, an additional “reasonable fee” may be charged for special requests to manipulate data and use of a computer program other than word processing. Fees for a copy can recover costs of the system. Fees can and sometimes are waived for journalists, academics, nonprofits and academic research.

According to a memo dated August 2007 the city of Grand Junction has charged hourly fees of up to $60 for research, retrieval and related services for public documents. The city maintains it is covered under CORA to charge actual costs of recovering documents, which may include an employee’s hourly salary, and may additionally charge costs of the media it is reproduced on, plus costs of retrieving and inspecting the documents from archives.

In this case, Zehner was told it would cost $50 an hour and take up to 26 hours, or about thee solid work days, for a city technician to retrieve all e-mails from March to the present. Zehner had requested a search with 11 keywords, including “gravel extraction,” the project name and its owner, and her own name, among other words. Zehner halted her request when she learned of the price tag, and city officials offered to help her narrow her search to reduce the cost. Because her group is a nonprofit, Concerns of Impacted Neighborhoods or COIN, Zehner thought she may be eligible for a reduced rate.

Steve Zansberg, an attorney for the Colorado Press Association, of which The Daily Sentinel is a member, said the city is probably charging those fees as an interpretation of a subsection added in 2007 to CORA.

It states: “If the public record is a result of computer output other than word processing, the fee for a copy, printout, or photograph thereof may be based on recovery of the actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system.”

Zansberg said he would argue that e-mails are considered word processing.

But fees can only be charged for copies of public documents. Zansberg said that begs the question: How does an entity allow e-mails to be inspected without providing printed copies?

“Unfortunately, our statute is not clear on these issues,” he said. “I think the real issue is whether or not the records requestor can view the document without taking away a copy. What we are dealing with is not a request for copying but a request for inspection.”

About one year ago, Grand Junction resident Kathy Jordan had quite a different experience obtaining e-mail correspondence from the city.

At 25 cents per page for a total of about $20, she received about a year’s worth of e-mail correspondence between City Council members, planning commissioners and some staff members about zoning changes along Seventh Street. Jordan wanted to determine who approved zoning changes that were permitted in her neighborhood without a public hearing on the matter. She never did get her question answered, but, “I did get some revealing e-mails,” she said.

Jordan said about half of the requested e-mails were held back for reasons of attorney-client privilege, which is the case when the city’s attorney offers legal advice to a staff member or an elected official.

Still, reviewing the public record wasn’t easy, she said. Jordan said she was first told by city staff she wasn’t allowed to see those kinds of documents. Jordan knew the law and was aware the documents were open for inspection.

“It’s a nightmare,” Jordan said. “It is extremely difficult for John Q. Public to get information.”

City Records Manager Melinda Catapano said she remembered Jordan’s request. She said the request came at least a year ago, before the city utilized an e-mail archiving system. Previously, e-mails much older than 60 days were dumped. Jordan was charged the 25-cent per page fee because her request was somewhat limited, and it involved asking the pertinent officials and staff to turn over their e-mails, Catapano said.

“It is the only way to make sure we get what everybody has asked for,” she said of archives. “We can be way more comprehensive.”

Richard White, the city’s system-support supervisor, said with generic keywords, searches can produce up to 100,000 records. It’s his job to search for those documents and ensure they meet the criteria of the records requestor. White said he estimated the time needed to produce Zehner’s request based on previous, similar requests. White’s time is spent refining searches, sifting through the data, eliminating duplicates and manually printing each document. White then must retrieve each document from the printer as it releases them, so the record doesn’t wind up elsewhere because the printer is shared by other staff.

“We try to coach them into narrowing their search down. Some requests are so broad,” White said. “We ask, ‘What are you exactly looking for?’ and try to help them out as best as we can. We let them decide.”

He said he makes between $51 and $52 dollars an hour, including benefits. The city lists searches of information services, a task that would be done by White, at $50 an hour.

Mesa County Attorney Lyle Dechant said his office rarely receives records requests that require excessive amounts of staff time, and most requests, even e-mail requests, are handled at 25 cents per page. For voluminous requests, the requestor would have to pay the hourly wage of the staff member doing the work. Work would begin after the county received a check, he said.

In contrast at the city, public records that are not e-mail generated, such as those in a planning file, would cost only 25 cents per page to take away a copy.

Zansberg said it’s unfortunate when an entity decides to charge pass-through fees to inspect public documents because it could defer people from their rights to open records.

“It’s not a well-settled area of law,” he said. “It’s probably a good area where the public and the press should have concerns about obtaining public documents.”



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