CHEROKEE METROPOLITAN DISTRICT
PUBLIC RECORDS POLICY
I. PURPOSE
The policy of the Cherokee Metropolitan District (the "District") is that the decision making process is a matter of public business and may not be conducted in secret. All public records shall be open for inspection by any person at reasonable times, except as otherwise provided by law. However, computer-generated communication systems are frequently used by employees for the purposes of documenting and sending personal or private messages, or messages not intended to be viewed by the public. The District desires to implement a policy that will serve the public's right to access public records, while identifying to employees the inherent difficulties in ensuring privacy in the use of the District's computer system for personal use.
II. AUTHORITY
The District enacts this Policy under the following authority: the Colorado Open Records Act, C.R.S. 24-72-200.1. et seq., as amended (the "CORA"); the Colorado Sunshine Law, C.R.S. 24-6-401, et seq., as amended; Black v. Southwestern Water Conservation District, 74 P.3d 462 (Colo. App. 2003); Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986); and Mountain Plains Investment Corp. v. Parker Jordan Metro. Dist., 12CA1034 (Colo. App., August 15, 2013).
III. DEFINITIONS
For purposes of this Policy, the following terms shall have the following meanings:
Correspondence: A communication that is sent to or received by one or more specifically identified individuals and that is or can be produced in written form, including, without limitation, communications sent via electronic mail, private courier, U.S. mail, modem or computer.
Custodian of Records: The individual who shall be responsible for compiling documents, scheduling appointments for inspection, and for responding to any public records request. The Board of Directors hereby designates the General Manager as the Custodian of Records.
Electronic Mail ("Email"): An electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. E-mail includes electronic messages that are transmitted through a local, regional or global computer network.
Work Product: All advisory or deliberative materials assembled for the benefit of elected officials, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials in reaching a decision within the scope of their authority. Such materials include, but are not limited to: notes and memoranda that relate to or serve as background information for such decisions; and preliminary drafts and discussion copies of documents that express a decision by an elected official. "Work product" also includes a request by a District official for the preparation of such opinion or deliberative materials. For example, if the General Manager requests in writing that staff prepare material to assist the Board of Directors in a decision-making process, the written request shall also be considered work product.
IV. PROTECTED RECORDS
A. Certain records are protected by law from public inspection under the CORA, including the following: Personnel files, social security numbers, work product, deliberative process records, attorney-client privileged records, individual medical, mental health, sociological and scholastic achievement data, letters of reference, trade secrets, confidential commercial or financial data, personal information of past or present users of public utilities, facilities, recreational or cultural services, records of sexual harassment complaints and investigations, and addresses and telephone numbers of public school students.
B. Records that are exempt from the CORA might still be accessible via other forms of inspection, such as subpoena.
V. PRIVACY
Employees should have no expectation of privacy when using any equipment owned, leased or operated by the District. Information stored on such equipment is subject to audit and review by the District at any time, for any reason. Such information may also constitute a public record under the CORA.
VI. EMAIL
A. The District's email system is provided by the District to facilitate District work and is intended for business-related communications, including uses related to District-sponsored events and activities. The District recognizes that occasional personal use will occur, and such use is permitted as long as it does not interrupt the normal flow of District business. However, any improper use, as determined by the District, is prohibited and may result in: suspension or loss of email access; disciplinary action up to and including termination of employment; and/or legal action.
B. E-mail correspondence of District employees and elected officials may be a public record under the CORA and therefore may be subject to public inspection. Exceptions to inspection may include email which is covered by the attorney-client privilege, work product privilege or other privilege recognized by Colorado law. Most routine email, however, will likely be considered public information. Employees and elected officials should have no expectation of privacy when using the District's email system. All electronic communications sent or received on the District's email system, regardless of the subject matter or email address used, are District property and may be subject to disclosure under the CORA. The District reserves the right at any time, to monitor, access, view, use, copy and/or disclose all such email messages.
C. Email users are responsible for safeguarding their passwords and may not disclose their passwords to others. However, the use of a password does not prevent the District from monitoring, accessing, viewing, using, copying or disclosing any email messages sent or received on the District's email system.
D. District employees may not access the computer account of another unless granted permission to do so by that user. This restriction does not apply to system administrator and others who are authorized to access the systems for legitimate business purposes.
E. Improper use of email includes, but is not limited to: 1. Language which is offensive, obscene, or in poor taste, including jokes or messages which create an intimidating, hostile or offensive work environment; 2. Messages or information which conflict with the District's policies against discrimination or harassment in the workplace; 3. Messages or information which advertise or promote a business, political candidate, political or religious cause; 4. References or messages which give offense on the basis of race, color, religion, national origin, citizenship, ancestry, marital status, sex, disability, age, veteran's status or sexual orientation; 5. Frivolous use which interrupts the normal flow of District business, such as playing games, conducting betting pools, and chain letters; 6. Messages which violate any law, and 7. Messages urging electors to vote in favor of any statewide ballot issue, local ballot issue, referred measure, or recall, pursuant to C.R.S. 1-45-117.
F. District employees and elected officials are expected to use common sense and good judgment in all official communications and to avoid any communication that is disrespectful, offensive, or threatening to others. Violation of this policy may result in any or all of the following: suspension or loss of e-mail access; disciplinary action up to and including termination of employment; and legal action.
G. Email is retained on the District's server for a designated period of time, so employees and elected officials should not assume that any email that they personally delete is thereby deleted from the District's server. The District will retain, archive, or purge, as the District deems appropriate, any incoming or outgoing email to or from any District employee.
H. Pursuant to the Colorado Sunshine Law, a meeting of three or more members of the Board of Directors at which any public business is discussed or at which any formal action may be taken is a public meeting. The term "discussion" as used in the Colorado Sunshine Law implies live, responsive communication between elected officials. Therefore, it is the District's policy that the mere receipt or transmission of e-mail in other than a live, communicative discussion format shall not constitute a public meeting and shall not be subject to the requirements of the Colorado Sunshine Law. For example, the receipt by one or more elected officials of e-mail sent earlier in the day or week by another elected official concerning public business shall not constitute a "public meeting." The e-mail may, however, constitute a public record otherwise subject to disclosure pursuant to the CORA and this Policy.
VII. RETENTION OF DOCUMENTS
All public records other than email shall be retained in accordance with the guidelines established by the Colorado State Archives. At the request of the District's General Counsel, the Custodian of Records may retain certain records after the retention period expires.
VIII. INSPECTION
A. General. Public records shall be open for inspection by any person at reasonable times, subject to the exceptions found in the CORA. All public records shall be inspected at the District's Main Office or at the offices of the District's General Counsel.
B. Request Required. A request to inspect public records must be written, and sufficiently specific in scope to enable the Custodian of Records to identify the information desired. Requests for inspection of e-mail shall include the sender's name, the recipient's name and the approximate date and time of the transmission. If the Custodian of Records receives a request to inspect public records that is ambiguous or lacks sufficient specificity to enable the Custodian of Records to locate the records, the Custodian of Records shall, within three working days, notify the requesting party in writing of the deficiencies in the request. Any clarified request shall be considered a new request for purposes of this Policy and the CORA.
C. Review and Response. Upon receipt of a request for inspection of public records, the Custodian of Records shall review the request and determine whether the requested records are voluminous, in active use, or otherwise not readily available. If so determined, the Custodian of Records, within three business days, shall notify the requesting party in writing that the documents will be produced for inspection within seven additional business days, pursuant to C.R.S. 24-72-203(3). Notwithstanding the foregoing, if it is physically impossible for the Custodian of Records to comply with a request for public records within the time periods established by CORA, the Custodian of Records shall comply with the request as soon as physically possible. If the records are readily available, the Custodian of Records shall so notify the requesting party. Each notice shall include the required deposit, if applicable, and the total amount of fees that must be paid prior to production or transmission of the records.
D. Digital Records. For digital records, if a public record is stored in a sortable or searchable digital format, the Custodian of Records will provide the digital record in such a format. If the Custodian of Records cannot produce the record in either a sortable or searchable format, the Custodian of Records will notify the requestor.
E. Transmission or Production. As directed in the written request for records, the Custodian of Records will transmit the requested records by e-mail, regular mail, courier service or facsimile. If no direction is provided in the request, the Custodian of Records will make the records available for inspection at District's Main Office by appointment. In no case shall records be transmitted or produced until all fees under Section IX have been received by the District. Once all fees are paid, the Custodian shall transmit or produce the records within three business days, unless a longer time is provided by Section C above.
F. District's General Counsel. Any of the notices required herein may be issued by the District's General Counsel in lieu of the Custodian of Records. By written notice, the District's General Counsel may further require that any requesting party contact the General Counsel rather than the Custodian of Records.
IX. FEES
A. Copies, Printouts or Photographs. Pursuant to C.R.S. 24-72-205(5)(a), the District shall charge a fee not to exceed 25 cents per standard page for any copy of a public record or a fee not to exceed the actual cost of providing a copy, printout or photograph of a public record which is in a format other than a standard page. For purposes of this Policy, a black and white copy made on a single sheet of letter or legal sized white paper shall constitute a "standard page."
B. Research and Retrieval Fees. Pursuant to C.R.S. 24-72-205(6)(a), the first hour of research and retrieval shall be free. After the first hour, the District shall charge a research and retrieval fee of $30.00 per hour for any staff time devoted to searching for the requested information. A deposit of equal to 50% of the estimated costs of responding to a records request shall be submitted to the District prior to any search being commenced.
C. Transmission. Pursuant to C.R.S. 24-72-205(1)(b), the District shall charge a fee, not to exceed the actual cost of transmitting the requested records (e.g., postage, courier service, electronic storage device, etc.). No fee shall be charged for transmitting material via electronic mail, provided that the requesting party may be charged for staff time associated with research and retrieval of the requested records as provided herein.
D. Payment of Fees. Requested documents will only be sent to the requestor once the Custodian of Records either receives payment or makes arrangements for receiving payment for all costs associated with records transmission and for all other fees lawfully allowed.