La Plata County government in July terminated its natural resources planner tasked with implementing the county’s year-old gas and oil regulations.
When The Durango Herald asked to inspect the termination letter in the course of investigating the slow implementation of chapter 90, the county incorrectly denied the request, citing a frequently misused exemption to the open records law.
County staff released the letter Sept. 10 following an exchange between an assistant county attorney and an attorney working on behalf of the Herald and the Colorado Freedom of Information Coalition.
The letter ultimately yielded little in the way of information about the enforcement of gas and oil regulations. Issues arose long before the terminated staff member was notified of her performance deficits. The Herald is not naming the employee because her performance was not directly relevant to the efficacy of chapter 90.
But the legal back-and-forth it took to inspect the letter is unfortunate, said CFOIC Executive Director Jeff Roberts. The nonpartisan group runs a hotline for reporters and the public and seeks to help ensure the transparency of state and local governments in Colorado.
“It shouldn't have to be that way, that these fights have to happen all the time when the records are obviously public,” he said.
County spokesman Ted Holteen said the county was “playing it safe when there’s a human involved.”
Most documents maintained by a government are subject to the Colorado Open Records Act. The law does contain a handful of exemptions for circumstances in which governments must or may choose to deny inspection of records.
Records in an employee’s personnel file are one such mandatory exemption, and it was this exemption cited by the county attorney’s office when justifying the denial.
“’Personnel files’ means and includes home addresses, telephone numbers, financial information, a disclosure of an intimate relationship filed in accordance with the policies of the general assembly, other information maintained because of the employer-employee relationship,” the statute states.
But governments across the state try to stretch that definition all too often, Roberts said.
“The open records law is there to make sure that the public can know about what their government is up to, and when an official or a public employee is fired or resigns or is disciplined, that's something that a community may be interested in,” Roberts said. “Just the fact that a reporter is asking about it means that there is a public interest.”
The personnel files exemption is “used a lot to keep records from the public,” he added.
Holteen said denial was based upon an abundance of caution.
“Because there was an individual who's no longer here, we just wanted to make sure that we were following all the proper procedures and protecting the rights of that individual, quite frankly,” he said.
However, public employees do not enjoy the same expectation of privacy as those in the private sector, Roberts noted.
After the county denied the Herald’s Aug. 5 request, an attorney with the firm Ballard Spahr sent a letter on Aug. 27 to the county requesting reconsideration. The two parties met, and the county offered to release a final performance rating of the employee in lieu of the letter.
The Herald rejected that offer on Sept. 5, and the county provided a copy of the termination letter on Sept. 10.
“It’s often too bad that it takes a lawyer letter to do that,” Roberts said.
rschafir@durangoherald.com
