When Denver District Attorney Beth McCann on Thursday declined to prosecute the Denver Police Department’s chief and a deputy chief for violating state open records laws it was the second time since October that a city official escaped criminal prosecution under the Colorado Open Records Act.
In fact, prosecutors in the district attorney’s office and open records experts along the Front Range cannot recall anyone ever facing a misdemeanor criminal charge for failing to provide public documents upon request.
And if Gov. John Hickenlooper signs a modernized open records bill passed this legislative session, no one will ever be fined or sent to jail for refusing to cough up documents. The governor is expected to sign the bill, which would become law on Aug. 9, said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
“I wish it wasn’t going away, but it’s never been used,” Roberts said of the criminal element in existing law.
The Colorado Criminal Justice Records Act, which governs how law enforcement agencies release documents, also includes a criminal component for lawbreakers. But experts don’t recall a single prosecution related to it, either.
McCann likely would have reached the same conclusion had she investigated Denver police Chief Robert White’s and deputy chief Matt Murray’s actions under that statute, Roberts said.
White and Murray were accused by the Denver Police Protective Association of lying about the existence of a letter written by former District Attorney Mitch Morrissey that was critical of Murray’s handling of an internal investigation.
McCann investigated White and Murray in relation to the open records act because the letter in question was not part of an official investigation into a criminal case, said Ken Lane, a spokesman for McCann’s office.
The police union twice sent open records requests asking for the letter and was denied. In one email, Murray had told the city safety department’s records coordinator, “I have no records responsive to this request.”
The union asked the district attorney to investigate. McCann publicly scolded White and Murray for careless handling of the request but ultimately said there was no basis for criminal charges to be filed against the men.
In another example of the difficulty in proving someone violated the law, Morrissey in October declined to file charges against former city attorney Scott Martinez. Martinez had told Denver’s CBS4 that a letter rescinding an assistant city attorney’s firing did not exist. Morrissey told the television station that the letter should have been turned over but he could not prove that Martinez had willfully violated the law.
The “willful and knowingly” section of the state statute makes prosecution difficult, Lane said.
“You don’t see that in other criminal statutes,” he said.
