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Simpson v. City of Durango.

2024 COA 30. No. 23CA0622. Colorado Open Records Act—Work Product Exceptions—Work Product Prepared for Elected Officials—Appellate Attorney Fees.

March 28, 2024

Simpson made a public records request under the Colorado Open Records Act (CORA) for the City of Durango’s (city) unaudited draft version of its annual independent financial audit report. The city declined to release any draft report, asserting that it was not a public record under CORA because it was “work product.” Simpson filed suit, asserting that the city’s failure to release the draft report violated CORA. The parties stipulated that the district court could decide whether the draft report was subject to public inspection by relying solely on the parties’ briefs and affidavits, and that either party or the court could request an evidentiary hearing. No one requested an evidentiary hearing. Based on the limited record produced by the parties’ stipulated procedure, the district court required the city to make the draft report available for public inspection on grounds that it did not meet CORA’s definition of “work product,” and it was not “prepared for elected officials.”

As an initial matter on appeal, Simpson argued that the court of appeals lacks jurisdiction because the city, rather than the city clerk, filed the initial notice of appeal. However, the city’s clerk, in her official capacity, is the records custodian for the city, so Simpson’s underlying lawsuit, which named the clerk in her official capacity, was, in fact, a suit against the city. And though the city’s notice of appeal should have included the clerk as an official-capacity defendant in its caption, the failure to do so is not jurisdictional, and the court properly exercised its authority under C.A.R. 43(c)(1) to ensure that the clerk was added to the caption as an official-capacity defendant.

On the merits, the city argued that the district court erred by determining that the draft report isn’t exempt from CORA’s disclosure requirements on grounds that it is not work product and not prepared for elected officials. The court held that the draft report is not “[w]ork product prepared for elected officials” under CRS § 24-72-202(6)(b)(II) because, on the record here, elected officials have no control over the final report’s content and are not meaningfully involved in decisions involving the final outcome of the report or any decision based on its content.

Simpson also requested his appellate attorney fees under CRS § 24-72-204(5)(b). Simpson successfully defended the district court’s ruling that he was improperly denied the right to inspect the draft report, so he is entitled to his reasonable attorney fees incurred on appeal.

The judgment was affirmed and the case was remanded for further proceedings.

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

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