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Access to Public Records - Revised 07.01.24CITY OF BOULDER POLICIES AND PROCEDURES ACCESS TO PUBLIC RECORDS _________________________________ Nuria Rivera-Vandermyde, City Manager EFFECTIVE DATE: December 3, 2001 AMENDED DATE: July 1, 2024 I. POLICY It is the policy of the City of Boulder (City) to make public records available for public inspection at reasonable times in accordance with the provisions of the Colorado Open Records Act, C.R.S. §§ 24-72-201 et seq. (CORA). This policy (Policy) is intended to be consistent with and implement the provisions of CORA. II. PURPOSES The purposes of this Policy are to: A. Set forth the general procedures for providing consistent, prompt, and equitable access to and inspection of public records maintained by the City across all departments. B. Foster open and accessible government while also protecting the integrity of the City’s records. C. Prevent unnecessary interference with the regular operational duties of City employees that may be caused by access to the public records. D. Establish reasonable, standardized fees for the research and retrieval of City- maintained records as well as for the review, analysis, redaction, preparation, and production of copies of public records. E. Provide general guidelines to assist City employees in handling public records requests. III. APPLICABILITY A. Generally, this Policy applies to all City records and to records requested pursuant to CORA. B. This Policy does not apply to informal requests for information. Official records custodians will make reasonable efforts to respond to informal requests for information as soon as practicable. Such requests are not required to be made in writing or on City forms. C. This Policy does not apply to criminal justice records, as defined by the Colorado Criminal Justice Records Act (CCJRA), C.R.S. §§ 24-72-301 et seq. Requests for criminal justice records will be forwarded to the appropriate City criminal justice agency for processing. City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 2 of 9 IV. DEFINITIONS A. The definitions found in C.R.S. § 24-72-202, as amended from time to time, shall apply to this Policy unless the context clearly requires a different meaning. B. “Applicant” means the person requesting to inspect or receive public records from the City. V. OFFICIAL RECORDS CUSTODIANS A. Official custodians for City records are as follows: 1. The City Clerk is the official custodian of all records that are centrally maintained by the City, including electronic communications. 2. Department heads are the official custodians of all records maintained within their departments. B. It is the responsibility of all official records custodians to become familiar with, and educate affected City employees about, the requirements and procedures contained in this Policy. VI. PROCEDURES A. Written Requests. Generally, requests for public records under this Policy must be made in writing and be specific as to the information requested. The City will treat a records request that cites the federal Freedom of Information Act as though it were made pursuant to CORA. If an Applicant is uncertain about the identity of the official records custodian for the requested records, the Applicant may direct the request to the City Clerk or the Central Records department. B. Identification of Applicant. Except when a record is confidential and accessible to only the Applicant on the basis that the Applicant is the person in interest, as that term is defined under CORA, the City will not require an Applicant to furnish any form of identification as a prerequisite to releasing public records. C. Notifications to City Departments. 1. City staff must promptly notify the City Attorney’s Office and Central Records of all records requests so they may assist in processing such requests. The City Attorney’s Office may advise City staff about matters related to confidentiality, privileged records, and related matters prior to records being released to the Applicant. 2. Requests from the news media shall be directed to the City Manager’s Office communications staff, with a copy to Central Records and the City Attorney’s Office. City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 3 of 9 D. Conferral with Applicant. The City may contact the Applicant in order to clarify or narrow the request. E. Cost Estimate. A cost estimate will be provided to the Applicant if the estimated time needed to process the records request exceeds one hour. The cost estimate will include the estimated time needed by any City staff or representative to complete the research, retrieval, copying, redaction, assembly, etc., of the requested public records. Notwithstanding the foregoing, the failure of the City to provide a cost estimate to the Applicant does not relieve the Applicant of the obligation to pay for the cost to the City of producing public records in response to the Applicant’s request and does not prohibit the City from requiring payment prior to the City’s release of such records. Fees applicable to records requests are set forth in Section VIII below. F. Advance Deposit. If the estimated time to process a records request exceeds one hour, the City will require the Applicant to pay a deposit equal to one hundred percent (100%) of the estimated cost to produce the records. Should production of the records prove more costly than provided in the estimate, the Applicant must pay the additional amount prior to receiving the records. However, if the actual costs to the City are less than the estimate, any necessary cost adjustment and refund will be made by the City at the time the records are provided to the Applicant. G. Tolling of Response Time. If the estimated time to process a records request exceeds an hour, no work to complete the request will begin until the Applicant approves the cost estimate and pays the deposit. The timeframe the City has to complete the request will be tolled during the time period between notification of the cost estimate to the Applicant, Applicant’s approval of such estimate, and Applicant’s submittal of the deposit. H. Response Time. 1. Pursuant to CORA, the City shall make public records available within three (3) business days of the City’s receipt of the request unless extenuating circumstances exist. If extenuating circumstances exist, the City will notify the Applicant in writing and will have up to an additional seven (7) business days to make the requested records available. 2. If a request is received after 2:00 P.M. on a regular business day of the City or outside of regular City business hours, the request will be considered received on the next business day. 3. If the nature of the request requires more time than set out under CORA, the City will make a good faith, reasonable effort to process the request as promptly as is feasible in light of the size and scope of the request, the workload of the City employees needed to respond to the request, and the technical capacity of the City’s information technology (IT) systems. City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 4 of 9 I. Format and Manipulation of Data. 1. Records and data will generally be provided in the format in which they currently exist. The City will provide records in digital format in accordance with the requirements of C.R.S. § 24-72-203(3.5). 2. The City is not required to create a new public record in response to a records request. In the event that the City consents to any manipulation of data, the Applicant will be charged in accordance with the fees set forth in Section VIII below. J. Duplication of Records. The City will not screen requests from the same Applicant to avoid duplication of records. In the event that duplicate records are produced, no refunds will be issued. K. Multiple Submissions. Multiple or serial requests from the same Applicant within the timespan of three (3) consecutive business days will be considered a single request for purposes of charging fees to the Applicant. L. Abandoned Requests. If the City attempts to contact an Applicant to clarify a request, discuss the scope of a request, and/or provide a cost estimate and the Applicant does not respond within ten (10) business days, the City will close the request and require the Applicant to submit a new records request. M. Abusive or Harassing Requests. While the City is required to make a reasonable, good faith effort to respond to records requests within the guidelines of CORA, the City is not required to, and will not, respond to harassing, demeaning, threatening, or abusive communications. Persistent communications from an Applicant that contain harassing, demeaning, threatening, or abusive communications may be reported to the Boulder Police Department. N. Posting of Public Records. Following the production of public records in response to a records request and unless such records are confidential or available only to the Applicant, the City may post such records in a publicly available location on its website to be accessible free of charge. The cost of production of such public records shall be borne by the initial Applicant. O. Use of City Computers. No Applicant shall be allowed to access a computer terminal connected to internal City computer systems that is not ordinarily available for general public use. VII. ACCESS DENIED A. The City may deny a request for any of the reasons outlined in C.R.S. § 24- 72-204. For a list of the types of records that the City may withhold, refer to that section of CORA. Laws other than CORA may govern the City’s release of certain records or information. City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 5 of 9 B. The following is a non-exhaustive list of records the City commonly withholds as non-public, protected records: 1. Investigatory files compiled for law enforcement purposes; 2. Lists of email addresses, home addresses, and telephone numbers provided to the City or its elected officials for purposes of future communications from the City or its elected officials; 3. Specialized details of security arrangements or investigations; 4. Personnel files, as that term is defined by CORA; 5. Identities of applicants, except finalists, for the positions of City Manager, City Attorney, Municipal Judge, Independent Police Monitor, and department and division heads; 6. Medical, mental health, sociological, and scholastic achievement data for individual persons; 7. Letters of reference; 8. Personal identifying information or personal information, as those terms are defined in Article 73, Title 24, C.R.S.; 9. Trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data; 10. Records of sexual harassment complaints and investigations, except certain records of sexual harassment by an elected official where an investigation concludes that the elected official is culpable for any act of sexual harassment; 11. Contents of real estate appraisals made for the City relative to the acquisition of property or any interest in property for public use, until such time as title to the property or property interest has passed to the City; and 12. Attorney-client privileged records, work product, or records protected under the deliberative process privilege. VIII. FEES A. If a person has the right to inspect a public record, the person may request a copy of the record. The official records custodian may charge reasonable fees for the production of such public records. B. If, in response to a specific request, the City has chosen to perform a manipulation of data so as to generate a record in a form not used by the City in its normal course of business, fee(s) will be charged to the Applicant. Such fee(s) City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 6 of 9 shall not exceed the actual costs of research, retrieval and manipulation of the data, and generating the record in accordance with the request. C. The City will not impose a charge for the first hour of total time any staff members expend in connection with research and retrieval in filling a request for public records under CORA. D. After the first hour of time has been expended, the City will charge the hourly fee listed in subsection VIII.E below. The hourly fees shall be no more than the maximum hourly fee as posted on the Colorado General Assembly website and as permitted by C.R.S. § 24-72-205(6)(b), as amended from time to time, for the research and retrieval of public records. This cost is separate from and in addition to the fee for copies, printouts, photographs, CDs, DVDs, USB drives, or other devices onto which public records may be reproduced. E. The City charges the following fees related to the production of public records: ITEM COST Hard copies of documents $0.25/standard page CD, DVD, or USB Drive $15.00/device Manipulation/redaction of data $41.00/hour Research and retrieval of records $41.00/hour (after first hour) Mailing/transmission costs (does not apply to electronic transmission of records) Actual cost F. A “standard page” is defined as a document created from word processing, generated onto 8.5” x 11” or 11” x 17” sized paper from a non-color printer. No per-page fee will be charged for electronic copies of records. G. Copies, printouts, and photographs of a public record in a format other than a standard page will be provided for a fee not to exceed the actual cost of producing such documents. H. Applicants making a request for the same or similar records as another Applicant has previously made may be charged the same fee as the initial Applicant. I. At its discretion, an official records custodian may waive charges for the following as long as such waivers are applied uniformly to the types of Applicants described below: 1. Requests from other cities or states or from professional organizations to which the City as a whole pays membership dues to or participates in, such as the Colorado Municipal League; and City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 7 of 9 2. Requests from students for documents needed in conjunction with specific educational projects, unless responding to such a request requires extensive staff time. IX. PUBLIC ACCESS TO SOLICITATION RECORDS A. Pursuant to C.R.S. § 24-101-105(2), all political subdivisions of the State of Colorado may adopt all or a portion of the state’s procurement code, which is codified at Title 24, Articles 101-112, C.R.S., and its accompanying rules (State Procurement Code). B. The City finds that adoption of the policies for public access to solicitation records, including market research, in the State Procurement Code and of the supplemental policies for related City-specific solicitation practices set forth in this Section IX foster effective competition, result in increased economy in the City’s procurement activities, and prevent the unnecessary interference with the regular discharge of the City’s procurement duties.1 C. The City hereby adopts the following policies concerning release of solicitation records: 1. Access to Records Before and After Award. a. Following the closing time and date for the submission of solicitation responses and prior to award of a contract, the names of the bidders or offerors (“Respondents”) shall be made available for inspection, upon request. For solicitations where the award is based on the lowest bid or where price is the primary consideration, the amount of each bid or proposal shall be included with the name of the Respondent. For solicitations where the award is based on factors other than the lowest bid or where price is not the primary consideration, the amount of each bid or proposal shall not be made available prior to award. In no event shall a solicitation response be made available publicly prior to award.2 b. After award of a solicitation, all documentation related to the solicitation, including Respondent responses, shall be open to public inspection, except to the extent the City has approved a request from a Respondent to classify certain portions of the response as trade secrets or other confidential or proprietary information.3 c. The rules applicable to the disclosure of information prior to and after an award and the process for determining if certain information is 1 See C.R.S. § 24-72-203(1)(a) (“…[T]he official custodian of any public records may make such rules with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or the custodian’s office.”) 2 R-24-401-01, 1 CCR 101-9. 3 R-24-401-02, 1 CCR 101-9. City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 8 of 9 exempt from disclosure in accordance with CORA also applies to non- competitive procurements.4 d. An invitation for bids, a request for proposals, or any other solicitation may be canceled or any or all bids or proposals may be rejected in whole or in part at any time before a contract is executed when it is in the best interests of the City. The reasons therefor shall be made part of the contract file but shall remain confidential and shall not be subject to the provisions of CORA for the lesser of six months or until the contract at issue is awarded.5 e. All responses to requests for information are confidential until after an award, based on a subsequent solicitation, has been made or until the City determines that it will not pursue a subsequent solicitation based on the request for information. After such time, the responses to a request for information shall be open to public inspection in accordance with the provisions of CORA.6 f. Subsection IX.C.1.e shall apply to requests for qualifications in addition to requests for information. g. Except as provided in Subsections IX.C.1.e and IX.C.1.f above, proposals and bids shall be opened so as to avoid disclosure of the contents of the proposal or bid to competing Respondents during the review process. A register of proposals and bids shall be prepared in accordance with rules and such procurement records shall be open for public inspection after the award as provided in CORA.7 h. As provided in a request for proposals and pursuant to any applicable City rules, discussions may be conducted with responsible Respondents who submit proposals determined to be reasonably susceptible of being selected for an award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Respondents shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing Respondents.8 4 R-24-401-04, 1 CCR 101-9 5 C.R.S. § 24-103-301. 6 C.R.S. § 24-103-201.5 (4). 7 C.R.S. § 24-101-401 (1). 8 C.R.S. § 24-103-203 (6). City of Boulder Policies and Procedures Access to Public Records (CORA) Revised July 2024 Page 9 of 9 2. Confidential or Proprietary Information in Solicitation Documents. a. A Respondent may submit, as a part of its solicitation response, a written request for classification of certain portions of the response as trade secrets or other confidential or proprietary information. Material for which confidentiality has been requested shall be readily identifiable and separable from other portions of the solicitation to facilitate public inspection of the non-confidential portion of the solicitation response. In no event shall an entire solicitation response be classified as confidential.9 b. If the City receives a records request for or involving solicitation records, the City may, but is not required to, contact the Respondent before producing records pursuant to the records request, to request that the Respondent identify any information in its solicitation documents that is confidential or proprietary under CORA. Any part of a solicitation response not clearly marked as confidential or proprietary when the solicitation response is submitted to the City is presumed to be a public record. c. If at any time the Respondent identifies information to be withheld from release to the public, the Respondent will be required to indemnify the City and its officers and employees, through a written agreement in a form approved by the City Attorney’s Office, from and against all attorney fees and costs, incurred by or awarded against the City in connection with any litigation brought under C.R.S. § 24-72-204(5) challenging the City’s denial of inspection, copying, or release of the information identified as proprietary or confidential by the Respondent. X. INTERPRETATION, AMENDMENTS, AND PUBLICATION A. Employees who have questions concerning the interpretation or application of this Policy should be directed to the City Attorney’s Office. B. This Policy supersedes all previous policies covering the same or similar topics. Exceptions to this Policy may be granted only by the City Manager. This Policy may be reviewed and changed at any time. C. The City Clerk shall publish this Policy by posting and maintaining it on the City’s website. 9 R-24-401-03, 1 CCR 101-9.