The lawyer for the woman suing Pitkin County over its refusal to release a complaint made against her is using the county attorney’s website to bolster her case.
Elesabeth Shook went to court in June in her effort to see who complained about a construction project on her property in the summer of 2012. The county’s code enforcement officer investigated and found that the project involved “significant work,” including the use of an excavator, that was performed without requisite permits.
Shook was issued a notice of violation, and the matter was dropped once the permits were obtained, the code enforcement officer, Carrington Brown, testified in the June hearing.
Shook and her attorney, Chris Bryan of Aspen, filed a request under the Colorado Open Records Act (CORA) to get the complaint. They are also seeking an email from Brown and a county paralegal to County Attorney John Ely, and Brown’s notes from his investigation.
The county attorney’s office has said the release of the documents could lead to retaliation against the complainant and general neighborhood animosity. At the June hearing, assistant county attorney Laura Makar also cited exceptions to CORA that allow the county to keep the records sealed.
One exception, Makar argued, is that the records are part of an investigation by the county attorney’s office, which can prosecute violations of the county code. Such files are not subject to CORA, which explicitly protects records of investigations by prosecuting attorneys.
But in an Oct. 2 filing, Bryan includes a screen shot of the county attorney’s webpage.
“The defendants’ own website expressly provides the following disclaimer: ‘The County Attorney does not prosecute criminal matters,’” Bryan wrote. “That statement directly contradicts the defendants’ position that they even have standing to invoke the criminal investigatory files exception with respect to the withheld public records.”
Ely said Friday that his office disagrees with Bryan’s assertion. The disclaimer on the website is simply to aid the public in getting to the correct office, he said.
“I think Mr. Bryan is just grasping at straws,” Ely said. “The reason that statement is there is because there is quite a bit of confusion for folks trying to reach the district attorney’s office.
“We get calls all day long” from people trying to address matters handled by the 9th Judicial District, he added. The statement on the website is there to route people to the district attorney’s office, and “it’s not indicative of anything else.”
Bryan also cited a recent ruling by the Kentucky Supreme Court. In that case, the Cincinnati Enquirer had sought records related to a police department’s homicide investigation, and appealed after being denied by the city of Fort Thomas, Ky.
Bryan cited the state high court’s finding, on Aug. 29, that “narrowly construed” the investigatory files exception to Kentucky’s Open Records Act.
The “law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record’s content, its release poses a concrete risk of harm to the agency …” the Kentucky Supreme Court ruled. “A concrete risk, by definition, must be something more than a hypothetical or speculative concern.”
The ruling was a partial victory for the newspaper, as parts of a lower court’s determination were reversed while others were upheld.
Judge Gail Nichols of Pitkin County District Court has not yet ruled in Shook’s case.