RESOLUTION 2024-2-1
SOUTHWEST METROPOLITAN WATER AND SANITATION DISTRICT
ARAPAHOE, DOUGLAS AND JEFFERSON COUNTIES, COLORADO
RESOLUTION DESIGNATING THE OFFICIAL CUSTODIAN
OF RECORDS AND ADOPTING A POLICY ON RESPONDING TO
OPEN RECORDS REQUESTS
WHEREAS, pursuant to §32-1-1001(1)(h), C.R.S., the Board of Directors of the
Southwest Metropolitan Water and Sanitation District (“District”) is responsible for the
management, control and supervision of the business and affairs of the District; and
WHEREAS, pursuant to §32-1-1001(1)(i), C.R.S., the Board of Directors of the
District has the authority to appoint an agent; and
WHEREAS, on August 22, 2014 the Board previously adopted Resolution 2014-
8-1 Designating the Official Custodian of Records and Adopting a Policy on Responding
to Open Records Requests (the “Prior Resolution”); and
WHEREAS, since the adoption of the Prior Resolution, changes in state law
necessitate revisions to the policy on responding to open records requests and the Board
has determined that it is appropriate to re-adopt a policy on responding to open records
requests, as set forth herein; and
WHEREAS, the Board of Directors fully supports, and complies with, all Federal
and State laws relating to the retention, protection and disclosure of District records
including, but not limited to, the Colorado Open Records Act, Title 24, Article 72, Part 2,
C.R.S. (“CORA”), the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), and the Privacy Rule promulgated by the U.S. Department of Health and
Human Services which interprets and implements HIPAA; and
WHEREAS, it is the policy of the District that all public records shall be open for
inspection by any person at reasonable times, except as otherwise provided by law; and
WHEREAS, public records are defined by CORA as all writings made or
maintained by the District, regardless of the format or medium of the records, subject to
certain exceptions, including certain e-mail communications; and
WHEREAS, the District maintains an archive of all e-mail messages for
emergency backup purposes only; such archived e-mail communications are not
individually retrievable and are specifically not intended to create a public record.
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NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the
Southwest Metropolitan Water and Sanitation District that:
1. Construction Records.
(a) The District’s Manager, currently Cynthia Lane, is hereby
designated as the Official Custodian responsible for the maintenance, care and keeping of
all records of the District, except as provided herein.
(b) The Official Custodian shall have the authority to designate such
agents as the Official Custodian shall determine appropriate to perform any and all acts
necessary to enforce and execute the provisions of this Resolution.
2. Policy on Responding to Open Records Request. The following are general
policies concerning the release of records:
(a) All public records of the District shall be open for inspection at the
times designated herein, unless prohibited by the provisions of CORA or policies adopted
by the Board of Directors in conformance with CORA.
(b) Every request to inspect and/or copy any District record (a “Records
Request”) shall be submitted to the District’s Official Custodian in writing and be
specific as to the information desired. If not submitted to the Official Custodian, any
District employee or Board Member that receives the Records Request shall immediately
send the Records Request to the Official Custodian. To assist the Official Custodian in
responding to requests in a timely and complete manner, the Official Custodian may
require records requests to be submitted on a form developed by the Official Custodian.
(c) A copy of all Records Requests shall be forwarded to the District’s
legal counsel by the Official Custodian or any other representative of the District.
(d) The District’s legal counsel shall determine the District’s obligations
under the applicable Federal and/or State law(s). If the District is permitted to make
records available for inspection in whole or in part, the District’s legal counsel will so
notify the District's Official Custodian, who will assemble the disclosable requested
documents for inspection and/or copying in accordance with applicable Federal or State
law.
(e) If the District’s legal counsel determines the District is not permitted
by Federal or State law to make records available for inspection in whole or in part, legal
counsel shall provide a written response to the party submitting the Records Request
stating the legal basis upon which the Records Request in whole or in part is being
denied.
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(f) Following the denial of a Records Request and upon receipt of the
required written notice from the requesting party of said party’s intent to seek relief from
the District Court, the Official Custodian will attempt to meet in-person or speak by
telephone with the requesting party. District personnel are encouraged to utilize all
means to attempt to resolve the dispute during this time period and will provide a written
summary of the District’s position at the end of that period to the requesting party and to
the District’s Board of Directors. No phone or in-person conference is required if the
written notice indicates that the requesting party needs access to the record on an
expedited basis.
(g) Pursuant to CORA, all records must be made available for inspection
within three (3) working days from the Official Custodian’s receipt of the request, unless
extenuating circumstances exist. The deadline may be extended by seven (7) working
days if extenuating circumstances exist and the requesting party is notified of the delay
within three (3) working days of the Official Custodian’s receipt of the request. The
Official Custodian may set the time, which shall be during normal office hours, and the
place for records to be inspected, and require that the Official Custodian or a delegated
employee be present while the records are examined.
(h) A public record stored in a digital format that is neither searchable
nor sortable will be provided in a digital format. A public record stored in a digital
format that is searchable and/or sortable will be provided in such digital format, unless
(1) the public record is in a searchable or sortable format and producing the record in the
requested format would violate the terms of any copyright or licensing agreement
between the District and a third party; (2) producing the record would result in the release
of a third party’s proprietary information; (3) after making reasonable inquiries, it is not
technologically or practically feasible to provide a copy of the record in a searchable or
sortable format; or (4) if the Official Custodian would be required to purchase software or
create additional programming functionality in its existing software to remove the
protected information. A public record available in digital format shall be provided in
digital format by electronic mail or by another method, as agreed on by the requesting
individual and the Official Custodian.
(i) Altering an existing digital public record, or excising fields of
information that the Official Custodian is either required or permitted to withhold under
this subsection, does not constitute the creation of a new public record under Section
(2)(i)(iv) of this Resolution.
(j) The Custodian may charge the following fees (collectively, the
“Fees”) for responding to a Records Request:
(i) Printouts, photographs, and copies, when requested, will be
provided at a cost of twenty-five cents ($0.25) per standard page, and at the actual costs
of production for any non-standard page (the “Copying Fee”), except that no per-page fee
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will be charged for providing records in a digital or electronic format. A standard page
shall mean an 8.5-inch by 11-inch black and white copy.
(ii) When it is impractical to make the copy, printout, or
photograph of the requested record at the place where the record is kept, the Official
Custodian may allow arrangements to be made for the copy, printout, or photograph to be
made at other facilities and the cost of providing the requested records will be paid by the
person making the request (the “Outside Copying Fee”).
(iii) If a copy, printout or photograph of a public record is
necessary or requested to be provided in a format other than a standard page, the costs
will be assessed at the actual cost of production (the “Production Fee”).
(iv) If data must be manipulated in order to generate a record in a
form not otherwise used by the District, such data manipulation will be assessed at the
actual costs to the District (the “Manipulation Fee”); however, the District is in no way
obligated to generate a record that is not otherwise kept, made, or maintained by the
District.
(v) The cost for transmitting the requested records will be
charged at the actual cost of such delivery (the “Transmission Fee”). Transmission Fees
will not be charged for transmitting any record via electronic mail, when requested.
(vi) When the location or existence of specific documents must be
researched and the documents must be retrieved, sorted or reviewed for applicability to
the request, and such process requires more than one (1) hour of staff time, the Custodian
may charge a research and retrieval fee not to exceed forty-one dollars and thirty-seven ($41.37) per hour, or the maximum amount allowed by the Executive Committee of
the State Legislative Council, whichever is greater (the “Research and Retrieval Fee”).
(vii) If any requested records are protected by a privilege (for
example, but not limited to, the work product or attorney-client privileges) the District
may charge the actual costs of creating a privilege log identifying the privileged records
(the “Privilege Fee”). If legal assistance or review is necessary to create the privilege
log, the Privilege Fee may include the actual costs for such legal assistance.
(k) The District may require a deposit to cover the estimated cost prior
to commencing work to produce the records. Payment of the remainder of the Fees,
including all actual costs exceeding the estimated amount, must be made prior to the time
of inspection or release of the final work product or copies. All payments of Fees,
including deposits, may be made via cash or check; or credit card, debit card, or
electronic payment but only if at the time the records request is received the District
allows payment for services or products via debit card, debit card or electronic payment.
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(l) No person shall be permitted to inspect or copy any records of the
District if, in the opinion of the Official Custodian after consultation with the District’s
legal counsel, such inspection or copying would come within the prohibition of one or
more exemptions set forth in CORA.
(m) Except as required by Section 24-72-204(3.5)(g), C.R.S. and except
when a requested record is confidential and accessible only on the basis that the requester
is the person in interest, no form of identification shall be required to request or inspect
public records.
3. Severability. If any part, section, subsection, sentence, clause or phrase of
this Resolution is for any reason held to be invalid, such invalidity shall not affect the
validity of the remaining provisions.
4. Repealer. All resolutions, or parts thereof, in conflict with this Resolution,
including but not limited to the Prior Resolution, are hereby repealed, provided that this
section shall not repeal the repealer clauses of any prior resolutions or hereby revive any
resolutions previously repealed.
5. Effective Date. This Resolution shall take effect and be enforced
immediately upon its approval by the Board of Directors of the District.
The foregoing Resolution was approved and adopted this _____ day of
February, 2024.
SOUTHWEST METROPOLITAN WATER
AND SANITATION DISTRICT