Colorado Open Records Act: A New Era

New era for  Colorado Open Records Act (CORA) effective 8/9/17.

The most substantial change is that electronically stored information must be made available to the public in the format which it was created, most often referred to as “native” format. Examples of native files include: Microsoft Word (.doc, .docx), Excel (.xls, xlsx), Powerpoint (.ppt, pptx), Outlook (pst, ost, msg), Adobe Acrobat (pdf), etc. In some cases, native file formats require eDiscovery processing and conversion for all meta date to become fully searchable. Prior to the amendment, records could be produced in any format determined by the custodian and records could be produced in a non-searchable/sortable format.

The amended law requires custodians respond to requests to the extent such disclosure is "technologically or practically feasible". If so, then the custodian must provide the documents in a searchable or sortable format, otherwise, the custodian may provide the records in an alternate format after making "reasonable inquiries" (e.g., with a consultant or IT department) to determine feasibility. If records are provided in an alternate format, the custodian must provide a written rationale for doing so. The decision can be challenged, however, if successful, attorney's fees will not be awarded unless the custodian acted in an "arbitrary and capricious" manner.

Record responses containing information that cannot be disclosed under CORA (e.g., privileged or protected information), require the custodian redact that information and provide the record, rather than denying the request.

Prior to amendment, CORA included criminal penalties for custodians who "willfully and knowingly" violates the open-records law which is now removed

 

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