WHEREAS, pursuant to §32-1-1001(1)(h), C.R.S., the Board of Directors of the Eagle River Water & Sanitation District (“District”) is responsible for the management, control and supervision of all 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, the Board of Directors of the District has determined that it is appropriate to designate an official custodian of the District’s records for the protection of such records and in order to permit their inspection by persons entitled to examine and copy such records in an orderly
fashion; and
WHEREAS, the Board of Directors of the District has determined that it is appropriate to adopt a policy on responding to open records requests; 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 and public records expressly include e-mail communications.
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Eagle River
Water & Sanitation District that:
1. Official Custodian.
(a) The Government Affairs Supervisor is hereby designated as the Primary Official Custodian responsible for the maintenance, care and keeping of all records of the District, except as provided herein.
(b) The Capital Projects Program Manager is hereby designated as the Official Custodian responsible for the maintenance, care and keeping of all records associated with the District’s construction projects, subject to the control, supervision and direction of the Primary Official Custodian.
(c) The Official Custodian shall have the authority to designate such agents as they 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) If any question arises as to the propriety of fully complying with a Records Request, the Official Custodian shall immediately forward it to the District’s legal counsel.
(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.
(f) Following the denial of a request for record, upon receipt of the required written notice from the requesting individual that he or she will seek relief from the District Court, the Official Custodian will attempt to meet in-person or speak by telephone with the requesting individual. 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 requestor and to the District’s Board of Directors. No phone or in-person conference is required if the written notice indicates that the requestor 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) Any public record that is stored in a digital format will be provided in a digital format. A public record stored in a digital format that is searchable will be provided in searchable format and a public record stored in sortable format will be provided in sortable format. A public record that is in a searchable or sortable format shall not be produced if: (i) producing the record in the requested format would violate the terms of any copyright or licensing agreement between the District and a third party;
(ii) producing the record would result in the release of a third party’s proprietary information; or (iii) after making reasonable inquiries:
(1) it is not technologically or practically feasible to permanently remove information that the custodian is required or allowed to withhold within the requested
format;
(2) it is not technically or practically feasible to provide a copy of the record in a searchable or sortable format; or
(3) the Official Custodian would be required to purchase software or create additional programming or functionality in its existing software to remove the
information required or allowed to be withheld.
(iv) A public record stored in digital format shall be provided in digital format by electronic mail, unless the size prevents email transmission, in which case they shall
be transmitted by another method, as agreed on by the requesting individual and the Official Custodian.
(v) 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.
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 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 thirty-three dollars and fifty-eight cents ($33.58) 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.
(j) If the estimated Fees to produce the records will exceed $100.00, the District may require a fifty percent (50%) deposit of the estimated Fees prior to commencing work
to produce the records. Payment of the deposit is required before the request is deemed complete so as to begin the time periods noted in subsection (g) of this section. 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, check, credit card, or debit card.
(k) 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.
(l) 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. 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 25th day of January, 2024.
EAGLE RIVER WATER & SANITATION DISTRICT
By:
Dick Cleveland, Chair
Attest:
Robert Warner, Jr., Secretary