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James Holmes attorneys' fight to seal public records -- and a damning new report

A new report on access to public records in Colorado scolds state agencies for excessive fees, failing to put records online so more citizens can make use of them, and for "pre-digital age thinking." On the same day, attorneys for James Holmes file a motion in the Aurora theater shootings case, asking the court to remove from its website all filings in the case and seal transcripts of hearings, contending that easy access to such information imperils their client's right to a fair trial. Nice timing, guys.

The juxtaposition highlights the gulf between theory and practice in the way Colorado's open records laws really work -- or don't work. The state's provisions for wide-ranging and prompt access to government information date back to 1969, among the oldest such laws in the country. (The federal Freedom of Information Act dates back to 1966.) But over the years a number of formal revisions to the laws and informal shifts in policy, sometimes ostensibly in the name of greater "transparency," have made it increasingly difficult to obtain not-so-public documents from state agencies in a timely and cost-effective manner.

From the cover of the Colorado Ethics Watch report.
From the cover of the Colorado Ethics Watch report.

Although hardly alone in their obstruction, the judicial branch has been particularly keen on frustrating the intentions of the Colorado Open Records Act, or CORA. In recent years, as we've previously reported, fiats from the Colorado Supreme Court and individual judicial districts have restricted, suppressed, or required cumbersome redaction of numerous types of records, from criminal to divorce to probate cases. This has been done in the name of protecting "personal information" from supposed identity thieves and the like; but it also ends up shielding the abuses of the system, such as the predatory actions of unscrupulous guardians and conservators in probate court, from public scrutiny.

The new report from Colorado Ethics Watch, 21st Century Sunshine: Modernizing CORA, complains that the state lags far behind many others in making basic records (such as budget information or even how to file an open records request) available online. Colorado recently got an "F" from the Center for Public Integrity for its public records policies, in part because of its baffling array or research fees and other costs that can be assessed and effectively discourage public record requests.

Continue for more about James Holmes attorneys' fight to seal public records and the damning Colorado Ethics Watch report.

James Holmes and one of his attorneys at a hearing last year.
James Holmes and one of his attorneys at a hearing last year.

Although copying costs for public documents have been capped at 25 cents a page, the Ethics Watch report found no uniformity in the types of hourly research fees (and in some cases, hefty up-front deposits) required by different bureaucracies; Aurora, for example, officially charges $50 an hour for research time, while other cities might charge $20. But requestors are also "subject to vastly different fees depending upon which government employee ends up reviewing their request."

The scarcity of records online, where any citizen could access them without incurring additional costs, is a bigger problem. While agencies have wrestled with side issues such as how to keep addresses on e-mails posted online safe from spammers, it's becoming increasingly obvious that many entities just don't want the nosy public in their business. That's clearly the case for the Holmes attorneys, who evidently fear that keeping all the toxic legal maneuvering in the case online will pollute the jury pool.

Their motion -- filed yesterday, but which just became available online this morning -- contends that "public access to documents, pleadings and other information about this case should be restricted to the extent constitutionally possible so as to protect Mr. Holmes's right to a fair trial." The attorneys cite as precedent the death-penalty trials in Arapahoe County of Robert Ray and Sir Mario Owen, which were conducted in unprecedented secrecy -- so much so that even five years later, transcripts and other documents in the case remain sealed.

Ironically, it's the defense attorneys in the Owen case that have now gone to the Supreme Court in an effort to get those records unsealed. But it scarcely matters which side in a supposedly public proceeding is trying to keep the public in the dark. The reluctance to embrace transparency is as old as government itself; and for certain players -- including, no doubt, James Holmes -- there's a legitimate fear that the truth, if widely known, won't set you free. In fact, it might just be the end of you.

More from our Colorado Crimes archive: "Sir Mario Owens: Attorneys decry secrecy in death penalty case."


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