Colorado Supreme Court Weighs Arguments in Peace Officers Database Case

Comparing the Peace Officer Standards and Training (POST) board to the dental board and similar state licensing agencies, an attorney for two news organizations Tuesday urged the Colorado Supreme Court to reverse an appellate ruling that keeps the state’s database of law enforcement officers confidential.

The justices will decide whether POST is a criminal justice agency whose records are governed by the Colorado Criminal Justice Records Act, as the Court of Appeals determined in 2023, or whether it is an agency subject to the Colorado Open Records Act.

That legal distinction matters because CCJRA gives criminal justice agencies broad discretion to deny requests for many records after conducting a balancing-of-interests test. CORA, on the other hand, requires the disclosure of public records kept in “sortable” and “searchable” formats minus any fields of information that must not be released under exceptions in the law — exceptions that must be narrowly construed by records custodians.

Tuesday’s oral arguments largely focused on CCJRA’s definition of a criminal justice agency — one “that performs any activity directly relating to the detection or investigation of crime; the apprehension, pretrial release, post-trial release, prosecution, correctional supervision, rehabilitation, evaluation, or treatment of accused persons or criminal offenders; or criminal identification activities or the collection, storage, or dissemination of arrest and criminal records information.”

The Court of Appeals’ “expansive” interpretation of that definition could encompass licensing agencies such as the Colorado Dental Board and the Colorado State Board of Pharmacy because they collect and store criminal justice records for background checks, argued Katie Townsend, deputy executive director and legal director of the Reporters Committee for Freedom of the Press.

“It would clearly lead to absurd results,” she told the justices. “… There’s nothing to suggest that’s what the General Assembly intended, that anything, no matter how minimal, that brings you into the hyper-literal definition of criminal justice agency, is enough to put all of your records into the CCJRA and outside the reach of CORA.”

Townsend and Rachael Johnson, a Colorado-based attorney for the Reporters Committee, represent The Gazette, Gazette reporter Chris Osher and the Chicago-based Invisible Institute. Together they sued to obtain the POST database in 2021, hoping to use the records for reporting on rogue law enforcement officers who have moved from department to department after serious transgressions. (The Invisible Institute last week unveiled a national police index with data from 17 states, but not Colorado, to help journalists and the public track officers’ employment histories.)

Assistant Solicitor General Brittany Zehner, representing POST board director Erik Bourgerie, defended the characterization of POST as a criminal justice agency. Bourgerie and the board’s investigator are themselves POST-certified peace officers with “the same statutory or legal authority to investigate crime as a police officer,” she told the justices, and they sometimes find possible crimes during license revocation proceedings that are referred to prosecutors.

Zehner argued the Supreme Court could find POST to be a criminal justice agency using either of two elements in CCJRA — because it both investigates crime and collects criminal justice information.

But Townsend pointed out that state laws also give the dental and pharmacy boards certain investigative powers. The pharmacy board, she said, has the ability to inspect pharmaceuticals for mislabeling and refer possible violations for prosecution.

“So what we’re talking about are different types of licensing agencies, certainly with different types of authorities, but they do many, many of the same things when it comes to administrative investigations.”