Pitkin County Attorney John Ely is scheduled next month to argue in court why a local resident shouldn’t be privy to government documents related to a complaint lodged by her neighbor last year.
A show-cause hearing has been set for June 14 when Ely will make the case that by turning over the documents it would disclose the reporting party’s name, which would be bad governance — and bad for the community because it could further enflame tension in the neighborhood and incite a dispute between neighbors.
There is no “positive community benefit in the release of this identification and only a potential for untoward consequences,” Ely wrote in a statement in the court file.
Elesabeth Shook sued the county in March after her Colorado Open Records Act (CORA) request was denied. Shook is aiming to find out who called in an alleged code violation on her property by claiming that work was being done without a permit. County code enforcement officer Carrington Brown investigated the report, and no violations were found. In December, Shook’s attorney, Christopher Bryan who works at the Aspen-based law firm of Garfield & Hecht, requested all county communications related to the incident and Shook’s property, citing CORA.
It’s county policy to protect the names of people who complain about their neighbors, or anyone who alleges a land-use code violation.
Bryan will argue at the show-cause hearing that the county’s “wrongful withholding and non-disclosure of public records” infringes on Shook’s right to obtain public records concerning her and her property.
“Plaintiff has committed no crime, yet defendants persist in their assertion of privilege on the ‘criminal investigatory files’ exception to CORA,” Bryan wrote in court documents. “Defendants’ refusal to disclose what they deem to be secret government files about [Shook] violates both the text and spirit of CORA, and erodes the public’s trust and confidence in their public representatives.”
Aspen Daily News staff writer Andrew Travers has been called as a witness by Bryan, who will presumably ask about the newspaper’s March 18 article regarding the case.
Bryan also may call Shook and Ely as witnesses. Ely has stated that the county’s only witness may be Brown.
Shook also is seeking costs and attorney’s fees, which through April 30 have amounted to $14,830, however that figure will “undoubtedly increase over the coming weeks” as Bryan prepares for the show-cause hearing. Bryan also wrote in court documents that costs and fees also may be incurred if appellate litigation becomes necessary.
Ely has said that any communications his office had regarding the report were not subject to CORA and were protected under attorney-client privilege. Ely also told the Daily News that because Brown is a sheriff’s deputy, his work is not subject to CORA, which explicitly protects records of investigation by sheriffs, prosecuting attorneys and police.
District Court Judge Gail Nichols will decide whether the county is bound, under CORA, to disclose the name of Shook’s neighbor and documents related to the investigation.