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Leonard v. Interquest.

2022 COA 78. No. 21CA0666. Colorado Open Records Act—Documents Evidencing Receipt or Expenditure of Public Funds—Care, Custody, or Control of Documents.

July 14, 2022

Interquest North Business Improvement District (District) is a public entity that finances, operates, and maintains public improvements for properties within its boundaries. The District  has contracted with Nor’wood Development Group and its related entity InterQuest Marketplace LLC (collectively, developer) to provide public improvements and has paid the developer approximately $15 million in public funds. Leonard and the Deepwater Point Company (Leonard) requested certain documents under the Colorado Open Records Act (CORA) from the District. Part of Leonard’s CORA request sought the production of “[c]ontracts with those who performed the construction and consulting work for the installation of the public improvements paid for by the District” and “[i]nvoices and payments made to Nor’wood and Interquest Marketplace, LLC, or any related entity of either, for work or services performed on behalf of the District.” The District claimed that it produced all responsive documents in its possession, but it did not produce all the requested documents, so Leonard sued. The district court ordered  production of some of the requested documents but denied the request to the extent it sought documents that were in the possession of entities other than the District.

On appeal, Leonard contended that the district court misconstrued CORA by denying the request for construction contracts and payment records on the ground that the documents were not in the District’s possession. When a public entity has a contractual right to access documents from a third party, that entity has directed the third party to have care, custody, or control of the documents. Here, the District had the contractual right to condition payments to the Developer on receipt of the construction contracts and payment records. Accordingly, the documents are used for a public purpose and are therefore public records within the meaning of CORA, and the public entity must produce those documents upon a proper CORA request. Accordingly, the district court erred.

The judgment denying access to the construction contracts and payment records was reversed. The case was remanded for further proceedings, including proceedings to determine whether any statutory redactions to the records are necessary and to determine the amount of additional attorney fees to which Leonard is entitled.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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