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June 09, 2010 12:55 AM UTC

Suthers Hits Schools With Massive CORA; Garnett Hits Back

  • 24 Comments
  • by: Colorado Pols

As the Fort Collins Coloradoan reported this weekend:

More than 150 Colorado school districts are scrambling to fill a massive documents request from the state attorney general in connection with a lawsuit challenging the state’s school funding system.

Several school districts contacted by the Coloradoan, including the Poudre School District, said it was the largest records request they’d ever received…

The attorney general’s office used the Colorado Open Records Act to file requests in May with more than 150 districts that aren’t plaintiffs in the Lobato vs. State of Colorado suit, which alleges the state isn’t meeting its constitutional requirements in providing an adequate education to children. The attorney general is defending the state in the lawsuit.

The request asks districts to provide documents dating back to 2005 related to 26 items, including school board agendas and meeting minutes, documentation of school expenditures, amount of funding received for English Language students and Gifted and Talented students, and teachers’ names, salaries, education and experience.

The request was necessary for the attorney general to build its defense in the lawsuit, said Mike Saccone, spokesman for the agency…

That’s what John Suthers says about these records demands, but the school districts targeted don’t agree, and are earning as much media as they can protesting the hardship of Suthers’ “voluminous” request. Suthers’ Democratic opponent Stan Garnett waded into the argument today, calling for Suthers to “scale back” his request–from his camp’s release:

Garnett, who served eight years on the Boulder Valley School Board, two as Treasurer and two as its President, said his experience there, and his 28-year law career – 22 years managing complex litigation – give him great concern about the wisdom and need of the current Attorney General’s actions.

“I’ve been hearing concerns about this document request from friends on school boards across the state,” said Garnett. “This is a very difficult time for public education in Colorado. School districts are struggling with possible layoffs and increased class sizes and cutting the most basic services. An unprecedented request such as this could cost many school districts thousands of dollars out of their operating budgets and shows that the Attorney General’s office is out of touch with the realities most school districts are facing…”

“In my many years of managing complex litigation, I learned that there were many ways to gather information for litigation,” Garnett added. “As Attorney General, I would scale back the scope of this request, and look for innovative ways to develop the information needed in this litigation that are not so burdensome to school districts struggling to balance their budgets.”

Obviously opinions on this will be skewed by one’s view of the lawsuit in question, Lobato v. Colorado, positing that Colorado unconstitutionally fails to provide adequate funding for education. If you’re at all sympathetic to your local schools, though, it’s tough for Suthers to look anything other than, well, villainous, hitting them with this CORA demand for what conservative pundits gleefully describe as “a mountain of paper.” Especially with an opponent saying he’d do it less onerously and confrontationally.

Garnett’s job would still be to defend the state, of course–what we’re talking about is the difference in approach between a lawyer people nevertheless can work with and consider reasonable, versus punitive clerical maneuvers that give lawyers a bad reputation. Which would you rather be selling?

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24 thoughts on “Suthers Hits Schools With Massive CORA; Garnett Hits Back”

  1. say exactly how, where, and why he would “scale back” the request?  The quoted material simply notes that he makes a broad assertion without any particulars.  Without detailing the specifics of a different plan, it’s easy to say you would do it differently.  And not very persuasive.

  2. from every school district that isn’t already party to Lobato.

    Please provide access to and the opportunity to inspect and copy the following public records for 2005 through the present:

    1. Names of board members, their last known addresses and telephone numbers, and terms of service

    2. Board meeting agendas

    3. Board meeting minutes, including minutes from special board meetings or committee meetings

    4. Check registers, ledgers of accounts, and back-up documentation for school expenditures. In providing back-up documentation, please produce all documents regarding the reimbursement of expenses for employees or board members, all documents regarding hotel or travel expenditures, and all documents regarding entertainment expenditures. In addition, please produce all documents regarding payments over $500 in the aggregate in any 12 month period to any person or entity, but excluding bills for school utilities and curriculum purchases.

    5. Total Monthly District expenditures for each school within the District

    6. Annual district budgets, including amounts allocated to each school within the

    District

    7. Amount of English Language Proficiency Act funding distributed by the District per student per school

    8. Amount of Gifted and Talented funding distributed by the District per student per school

    9. Amount of Exceptional Children’s Educational Act funding distributed by the District per student per school

    10. Amount of total program funding distributed by the District per student per school

    11. Names of teachers, their salaries, education, teaching assignments, special endorsements, years of experience, years of experience with the District, and assigned schools within the District

    12. District Mission Statements

    13. Employment agreements and collective bargaining agreements

    14. Honors, awards, special recognition, or scholarships received by teachers, students, administrators, and schools

    15. Names of administrative staff (including central office staff), their salaries, titles, education, assignments or responsibilities, and years of experience with the District.

    16. Units or departments within the central office

    17. Amount of local funding distributed by the District per student per school for English language learners, gifted and talented students, and students with disabilities

    18. Identification of schools within the District that receive direct benefits of central office spending, and the form of such direct benefits, i.e., specialists, special program staff, professional development

    19. For each school in the District, disaggregated demographic information regarding school populations, including number and percentages of gifted and talented students, English Language Learners, special education students, migrant students, students qualifying for free lunch, and students qualifying for reduced lunch

    20. Disaggregated demographic information regarding District populations, including number and percentages of gifted and talented students, English Language Learners, special education students, migrant students, students qualifying for free lunch, and students qualifying for reduced lunch

    21. All policies for identifying students at risk and any intervention policies or support services for such students.

    22. All resolutions evidencing any borrowing from any fund or set of money set aside for a specific District purpose

    23. Quarterly reports received from any school

    24. All documents regarding curriculum selection within the District

    25. Annual balance of capital reserve fund

    26. All questions posed by the board to voters to contract for bonded indebtedness

    1. ..it seems like it would be easy for Garnett to explain which items he would delete and he could explain why each deleted request is not relevant to the pending litigation.  Or else, Garnett could propose an alternative request entirely, assuming he knows enough about the litigation to say so.  And if he doesn’t know enough to say so…well, maybe he shouldn’t say so.  

      Granted, this is my knee-jerk reaction.  

      1. a lot of that would already be on file (or should be) with the Dept of Ed, and Suthers could send someone over to look it up.

        But, seriously, all

        Honors, awards, special recognition, or scholarships received by teachers, students, administrators, and schools

        The CORA smacks of burdening school districts — maybe in hopes they’ll exert some pressure on their fellow districts?

        On the other hand, this lawsuit could result in hundreds of millions of dollars being redirected (maybe), so it’s not like both sides aren’t going to treat it like a massive lawsuit with tons of paper.

        1. Of course, I don’t know the allegations made in the lawsuit.  Likewise, I don’t understand how pressure from one district to another could affect the claims at issue in the litigation.

    2. Unless Suthers is planning on single-handedly solving the high unemployment in this state by hiring several thousand people there’s no way they can make use of all this info. This is nuts. He needs to reduce it to what he has the bandwidth to make use of.

      And why is he asking for such an onerous amount of production when he clearly can’t get through most of it? Is the cost imposed on the districts being done for some reason?

      1. …is beyond digestion?  As others have noted, mountains of documents are not unheard of in big litigation.  Moreover, many school districts are quite small and would not, I suspect, have nearly as many documents as you imagine.

      2. I’d love to see line-by-line justification for this request. I’d love to see a cost estimate for complying with this request. And I’d like to know if this information is already aggregated somewhere else.

        Does Suthers just not give a damn? Or is there some back story here that’s not evident. This seems punitive and I don’t understand why.  

    3. But each of these articles is something that every school district should have at its fingertips.

      If a school district can’t provide this information with or without a CORA request, then how do we know what’s being done with our money?

      1. is already on file with the Department of Ed.  A full record of everything else is likely going to involve long hours at a copy machine as many employment and academic records are still kept on paper.  Certainly it will be a monumental task to copy out all the backup documentation, since every canceled check and bill for the past five years will need to be provided.

        For things like awards and honors, the ambiguity makes this weird– what’s included in that?  Does a secretary wander down the hall with pencil and notepad to jot down the names in the trophy case?

        This time of year, teachers and most support staff are gone or focused on more important things.  Either things like curriculum development and grant writing get dropped, or some pissed off people are going to be called in for some overtime.  This is going to be expensive.

  4. Believe the Open Records act provides for payment of reasonable expenses of complying with these sorts of requests, including research, copying, staff time, etc.  Doesn’t the AG’s office have a fairly healthy budget?

  5. Hey, I’m not an attorney, but Suthers seems to be awful creative these days…

    June 10, 2010

    Mr.John Suther, Colorado Attorney General

    Submitted via facsimile to  

    Re: Communications with Non-Profit/ Tax-Exempt Organizations (per section 501 (c) et. seq.  IRS Code)

    Dear Mr. Suthers:

    Pursuant to the Colorado Open Records Act, Colo. Revised Statutes §§ 24-72-203 and 24-72-205, Club Twitty requests the opportunity to review and/or obtain copies of the following records generated, modified, or acquired by the Colorado Attorney General’s office, its departments, divisions and staff:

    All records (electronic, handwritten notes, meeting notes and participant lists, correspondence-including electronic communications, affidavits, or any other records) generated, modified or acquired by the Attorney General’s Office and its departments, divisions or staff from all non-profit/tax-exempt organizations (as specified by the Internal Revenue Service in section 501 of the U.S. tax code) since 2004 up to the present.

    As you know, Colorado’s Open Records Act requires that the custodian of the records must provide access to the requested records “at the time of the request.”  Colo. Revised Statutes В§ 24-72-203(b).  If the records are not “readily available,” the custodian shall make the records available within three (3) working days or less.  Id.  

    If the custodian chooses to deny access to ANY records, the custodian must provide a written response, which cites the specific grounds for a decision not to disclose records, and such a written response must be provided “forthwith.”  CRS В§ 24-72-204(4).  Accordingly, Twitty hereby requests access to the records requested herein and, if your decision is to deny or delay such access, a written response explaining your decision within three days of receipt of this letter.  Please note that if denial of access to public records is found to be arbitrary or capricious, the custodian of the records may be ordered personally to pay the requester’s court costs and attorneys’ fees, CRS В§ 24-72-204(5), and a willful and knowing violation of any portion of the Open Records Act (including failure to provide a written response as requested herein) constitutes a misdemeanor offense.  CRS В§ 24-72-206.

    This request is made on behalf of Club Twitty, a citizen of Colorado and these great United States, a free and democratic nation where citizens have the right to understand the workings of their government and hold their duly elected leaders to account.  

    Release of the records described in this request will primarily benefit the public. Various organizations sheltered under section 501 of the tax code are known incubators of bad ideas that often take root in backwater offices of state government and occasionally even in offices of state-level elected officials. This information will highlight whether such reprobate ideas are sprouting in the Office of the Attorney General in the Centennial State.  

    Club Twitty will make the information obtained from this request available to the public and to the media in the interest of open, honest government and transparency.   Release of the information will empower Colorado’s electorate and the public to better engage in their participatory government, to engage in public advocacy, and further efforts to protect and defend honest governance.  Club Twitty does not seek these documents for commercial use.

    Accordingly, Club Twitty requests that you grant a waiver of fees.  If a waiver is not granted, please inform the undersigned if the requested documents are voluminous (more than 100 pages, or if copying fees exceed $ 25.00).  If such is the case, Twitty would be happy to review the documents prior to their reproduction.

    Please feel free to call me at 970-xxx-xxxx if you have any questions.  You can send your response to:

    Club Twitty

    1234 Gaspatch Way

    Drilltown, CO

    Thank you for your attention to this matter, and thank you for your prompt cooperation.  Twitty looks forward to reviewing the records.

    Sincerely,

    Club Twitty

  6. I can’t help but think that if a private citizen filed such a request, the school districts would gladly meet the request for a dollar or two per page. Charging such outrageous costs for access to public documents is how government entities discourage public access.

    1. A 2008 bill that was developed as a result of reporting by the Coloradoan limits the cost of duplication to 25 cents a page. Prior to that change, Colorado governments were allowed to charge $1.25 per page, which was the highest in the country.

      Having said all that, there’s no doubt governments use the threat of high charges to try to dissuade records requests. That was the subject of a Coloradoan editorial Tuesday.

      http://www.coloradoan.com/arti…

  7. A response must be given within 3 days, and even for voluminous requests you may have less than 2 weeks to gather all the information. They can be a huge headache.

    And it’s an insidious way to short-circuit the normal litigation processes. No judge needs to review or approve this request for reasonableness, or to decide whether the information is “likely to lead to the discovery of relevant, admissible information.” In fact, there’s no review at all as to the reasonableness of the request.

    The only ammo the school districts have is that they can require advance payment of charges to copy the records, but often people try to get around that by (like Twitty) claiming that they should be entitled to waivers, or requesting PDFs rather than paper copies.

    Just reading the request, it seems ridiculously huge. And Suthers could at least have told the school districts, “look, I don’t care if you take a little longer than the statutory 3 to 10 days to respond.”

    1. The Colorado Open Records Act doesn’t make exceptions based on motivation. Public records were generated with money provided by the public and belong to the public. CORA requests may be a headache, but discomfort for a governmental body is not an exception to disclosure.

      Also, the AG has granted school districts an extension beyond the 3 days — up to a month in some cases — and has expressed a willingness to work with districts on the scope of the request. That was addressed a bit today in the Coloradoan editorial linked above.

      1. Reading the request list, some of this comes close IMHO to a nuisance request.  I think the public should have access to the records its government generates on its behalf, but I think 0.25 per page is perhaps a bit of an undercharge, considering the time it takes to gather and print the info.

        1. The law also allows the government to recoup personnel expenses for larger requests, at a rate of up to $20 an hour. The purpose of the modified law is to make fulfilling CORA requests, especially larger ones, cost-neutral for the government, but not a profit center for government, which was happening before (remember, the public has already paid to generate these records). The 25 cent copying charge is meant to cover the duplication costs. It’s hard to argue that the previous $1.25 charge (which was set in 1968, when I believe most record copying was done by monks with quill pens) was simply recovering copying charges.

          I’m not sure what a “nuisance” request is. Almost all records in possession of the government are, by law, open to the public, and it is the government’s legal (and I would argue moral) obligation to provide those documents when requested.

          1. If someone comes along and asks for a huge document dump just to annoy the department, and does this irregularly but taking tens of hours each time, how does that affect staffing?  It’s not like the departments have the spare cash to hire a full-time staffer to handle these loads, so when a big request comes along, it disrupts (to a greater or lesser extent) the operations of the department.

            In an ideal world, where everything is electronic and neatly arranged, I’d agree with you Bob.  But I know enough to know that’s not even remotely true.  Suthers’ request is, just looking at it, too broad (WTF does he need lists of honoraria for – if he’s got salary charts, he shouldn’t need them…)

            1. But the requester would have to pay for the request, so unless you’re Bill Gates, there’s a pretty finite limit to what you can do to “annoy” someone.

              Not to get too philosophical, but government is there to serve the people. Often times, government workers may feel “disrupted” having to perform their jobs. Open, transparent government lies at the heart of democracy. We can’t say you get to have records but I don’t because I’m somehow annoying.

              Finally, the why of the request is irrelevent. The list of honoraria is public record, and any member of the public who wants to ask for it is entitled to review that information and copy it, if they so desire.  

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