SB 17-040

Abstract

Section 1 of the bill adds a legislative declaration. Section 4 of the bill modifies the 'Colorado Open Records Act' (CORA) by creating new procedures governing the inspection of public records that are stored as structured data. Section 2 defines key terms including 'structured data', which the bill defines as digital data that is stored in a fixed field within a record or file that is capable of being automatically read, processed, or manipulated by a computer. Section 2 of the bill provides a definition of the term 'infrastructure security data'. Section 2 also specifies that, for purpose of the definition of 'public records in CORA, the terms 'state' and 'agency' include the judicial department of state government. If the custodian has made the requested records publicly available in a structured data format, section 3 of the bill allows the custodian to satisfy the request by redirecting the requester, in writing and in detail, to the location of the records. If public records are stored as structured data, section 4 requires the custodian of the public records to provide an accurate copy of the public records in a structured data format when requested. If public records are not stored as structured data but are stored in an electronic or digital form and are searchable in their native format, the custodian is required to provide a copy of the public records in a format that is searchable when requested. Section 4 specifies the circumstances that exempt the custodian from having to produce records in a searchable or structured data format. If a custodian is not able to comply with a request to produce public records that are subject to disclosure in a requested format, the custodian is required to produce the records in an alternate format or issue a denial and to provide a written declaration attesting to the reasons the custodian is not able to produce the records in the requested format. If a court subsequently rules the custodian should have provided the data in the requested format attorney fees may be awarded only if the custodian's action was arbitrary or capricious. Nothing in the bill requires a custodian to produce records in their native format or to release metadata. When a custodian produces records in a searchable or structured format, the choice of format is in the sole discretion of the custodian. Section 4 also clarifies that the bill does not relieve or mitigate the obligations of a custodian to produce records in a format accessible to individuals with disabilities in accordance with Title II of the federal 'Americans with Disabilities Act', and other federal or state laws. Section 5 of the bill adds as an additional ground that a custodian has for disallowing the inspection of public records that the inspection seeks access to infrastructure security data. This section of the bill also permits the custodian to deny the right of inspection of the following records, unless otherwise provided by law, on the ground that disclosure to the applicant would be contrary to the public interest: Software programs; network and systems architectural designs; source code; source documentation; information in tangible or intangible form relating to released and unreleased software or hardware, database design structures, database schema and architecture, security structures and architecture, and data stored in support structures; agency original design ideas; nonpublic business policies and practices relating to software development and use; and the terms and conditions of any actual or proposed license agreement or other agreement concerning the products and licensing negotiations. The bill permits any public employee, or former public employee, of any branch or level of government, to request that his or her home address, personal telephone number, or other similar personal identifying or location information be withheld from the production of any public records produced in a structured data or searchable format by presenting to any custodian of such public records a written declaration signed by the employee attesting that disclosure of the personal identifying or location information poses a credible risk to the health, welfare, safety, or security of the employee or to any member of the employee's family or household. Upon receipt of a signed declaration meeting the bill's requirements or a declaration containing the same information that has been executed by a federal law enforcement agency, POST certified law enforcement official, or a judicial officer, the custodian of any public records produced in a structured data or searchable format is required to either deny the inspection of such public records or redact from any such public records provided to any requester in a structured data or searchable format the employee's personal identifying or location information. The bill prohibits any claim of any kind from being asserted against either any records custodian or any agency of government that is premised on the failure of the custodian or the agency to comply with these requirements of the bill. If the custodian denies access to any record on the grounds that the record contains infrastructure security data, the bill requires the custodian to forthwith furnish the applicant with a written statement specifying why the requested record is infrastructure security data. At the same time, the custodian is also required to provide copies of the written statement to the attorney general of the state and also to the division of homeland security and emergency management within the department of public safety. The applicant may apply to state district court for a determination that the requested record is in fact a public record and does not satisfy the definition of infrastructure security data. In such legal action, the applicant bears the burden of proof. Section 5 also expands the grounds permitting the filing of a civil action seeking inspection of a public record to include an allegation of a violation of the digital format provisions in the bill or a violation of record transmission provisions specified in CORA. This section also specifies that altering an existing record, or excising fields of information, to remove information that the custodian is required or allowed to withhold does not constitute the creation of a new public record. Such alteration or excision may be subject to a research and retrieval fee or a fee for the programming of data as allowed under existing provisions of CORA. Section 6 modifies CORA provisions governing the copy, printout, or photograph of a public record and the imposition of a research and retrieval fee. Among these modifications: The bill deletes existing statutory language permitting the custodian to charge the same fee for services rendered in supervising the copying, printing out, or photographing of a public record as the custodian may charge for furnishing a copy, printout, or photograph; The bill replaces a reference in the statute to the phrase 'manipulation of data' with the phrase 'programming, coding, or custom search queries so as to convert a record into a structured data or searchable format'; In connection with determining the amount of the fee for a paper or electronic copy of a public record, the bill specifies that, if a custodian performs programming, coding, or custom search queries to create a public record, the fee for a paper or electronic copy of that record may be based on recovery of the actual or incremental costs of performing the programming, coding, or custom search queries, together with a reasonable portion of the costs associated with building and maintaining the information systems; and When a person makes a request to inspect or make copies or images of original public records, the bill permits the custodian to charge a fee for the time required for the custodian to supervise the handling of the records, when such supervision is necessary to protect the integrity or security of the original records. Section 7 repeals the existing criminal misdemeanor offense and penalty for a willful and knowing violation of CORA. Section 8 of the bill appropriates $50,810 to the judicial department for the 2017-18 state fiscal year from the general fund. This section of the bill also appropriates $855 to the department of law for the 2017-18 state fiscal year. This latter appropriation is from reappropriated funds received from the office of the state public defender in the judicial department. To implement the bill, the department of law is permitted to use this appropriation to provide legal services for the office of the state public defender in the judicial department.(Note: This summary applies to the reengrossed version of this bill as introduced in the second house.)