The city of Durango is hiking its records request fees from $30 an hour to $40 an hour.
The city cites an update to the Colorado Open Records Act that allows municipalities to charge higher fees.
An increase in requests this year and last year is driving the need for higher fees, according to the city.
City Clerk Faye Harmer said her office is on track to process over 525 record requests this year, nearly three times the number of requests it processed at the turn of the decade in 2020. As of Tuesday, it had completed 289 requests this year, compared to 189 total completed requests in 2020.
The swell in records requests is a trend continuing from last year, she said. In 2023, the city completed 455 records requests.
Records requests are not just increasing in numbers. They are becoming more complex too, which in turn increases the amount of staff time spent fulfilling requests, she said.
“We estimate that in 2023, approximately 910 hours of staff time were involved in completing all these requests. And of those, 31.8% of all requests were actually submitted by three frequent – or what the state refers to as ‘vexatious’ – requesters,” she said.
Colorado House Bill 24-1296 proposed modifications to CORA and initially included the term “vexatious requesters” to refer to individuals who used records requests to harass custodians of public records. It explicitly excluded members of the news media from that label. But the bill ultimately failed.
City Attorney Mark Morgan said the three most frequent requesters are Durango residents Adam Howell and John Simpson and The Durango Herald.
The Herald, like many news outlets, regularly submits records requests to obtain information pertinent to investigations and developing stories. The city often requests the newspaper to fill out a records request for basic information. In one example, the Herald was asked to complete a records request to obtain the name and spelling of a resident who spoke at a City Council meeting.
Simpson has gone after the city over transparency concerns multiple times. In March, the Colorado Court of Appeals ruled that a draft 2021 financial document sought by Simpson was not “work product” that was “prepared for elected officials,” the grounds the city used to decline Simpson’s request.
The court sided with the city on other aspects of the case, namely the amount in attorneys fees that should be awarded to Simpson. Still, the ruling vindicated Simpson to one degree or another.
Morgan said news media requests don’t amount to harassment – it is journalists’ job to report public business. Rather, constant requests by the same individuals that don’t result in any public benefit are wasting city staff resources.
That sort of activity has grown more frequent not just in Durango, but across Colorado and the country, he said.
“Anytime that a limited number of individuals can leverage a system to make it more expensive for everybody, there’s some irony there,” he acknowledged.
But Morgan stressed the fees are not intended to deter anyone from filing records requests.
“It's absolutely not to discourage anybody,” he said. “It's just keeping our fees in line with the state fees.”
The city follows the state’s lead when new state legislation passes. In the case of fees, the city aims to charge slightly less than the maximum fees allowable, he said.
Morgan said his hourly rate for processing records requests that require his review equals about $100 an hour, and even with the fee increase, the city doesn’t break even by charging for requests that take longer than an hour to complete.
(Per state statute, the first hour taken to fulfill any records request is free of charge.)
“It's just intended to offset the cost to the city as allowed by the state,” he said.
Colorado Freedom of Information Coalition Executive Director Jeffrey Roberts said he’s aware of 35 state agencies and local governments that have already increased their records request fees after CORA was updated on July 1.
CORA includes a provision that every five years, the maximum hourly fees municipalities can charge to fulfill requests is adjusted for inflation, Roberts said. Given the significant inflation that occurred between 2019 and 2024, it is no surprise Durango raised its fees. Other government agencies in Colorado will likely raise their fees too.
But Durango’s new $40 hourly fee is too high, he said.
“It effectively makes public records too expensive, and not available to the public in a lot of cases,” he said.
It’s not unheard of for disgruntled residents to swamp municipalities with records requests as a means to torment and overwhelm staff members. Morgan said the phenomenon is occurring across the country.
But public business is inherently the public’s business, Roberts said.
Roberts said he understands some people may go “overboard” with requests. Nonetheless, it is the government’s responsibility to provide information about itself, and it is the people’s right to ask, he said.
“I know there's one person in particular in Durango that has made a lot of requests,” he said. “But that person, I would guess … sees himself as someone who is trying to get information out there about what the city is doing.”
He said the mechanism used in Colorado to deter relentless records requests are hourly fees. State statute could be better written to strike a stronger balance between fulfilling records requests and preserving staff resources.
Morgan said he completely disagrees that fees are deterrents to frequent requesters.
“A fine or a fee for a traffic ticket – that is a government deterrent to speeding. When you say a fee for public records is a deterrent to getting public records, that's not the same thing,” he said.
He said if there were not fees to offset costs associated with records requests, such as Morgan’s hourly rate of about $100 an hour, that would absolutely be a deterrent. But that’s not the case, he said.
The CFOIC fought against HB24-1296’s “vexatious requester” provision, Roberts said.
“When you label someone as vexatious, it has a very negative connotation,” he said. “… I have to come down on the side of people having the right to request information about their government.”
cburney@durangoherald.com
