{"id":28235,"date":"2024-04-10T21:20:00","date_gmt":"2024-04-11T03:20:00","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/colorado-appeals-court-rules-in-favor-of-durango-resident-in-open-records-case\/"},"modified":"2026-03-31T00:24:22","modified_gmt":"2026-03-31T06:24:22","slug":"colorado-appeals-court-rules-in-favor-of-durango-resident-in-open-records-case","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/colorado-appeals-court-rules-in-favor-of-durango-resident-in-open-records-case\/","title":{"rendered":"Colorado appeals court rules in favor of Durango resident in open records case"},"content":{"rendered":"\n

\"John
John Simpson<\/span>John Simpson<\/span><\/figcaption><\/figure>\n<\/p>

Less than a week after the Durango Board of Ethics began investigating an ethics complaint against him, resident and former Infrastructure Advisory Board member John Simpson netted another legal victory against the city in court.<\/p>\n

The Colorado Court of Appeals delivered a ruling in favor of Simpson on March 28.<\/p>\n

In the ruling, the appeals court sided with Simpson and the city on different nuances of the case, which revolves around 2021 draft financial documents requested by Simpson and denied to him by the city on the grounds they are \u201cwork product\u201d exempt from Colorado Open Records Act requests.<\/p>\n

\n

What is \u201cwork product\u201d according to the Colorado Open Records Act?<\/h4>\n

The Colorado Freedom of Information Coalition says the Colorado Open Records Act exempts \u201cwork product\u201d from open records request. Work products are \u201cnot subject to disclosure to mean advisory or deliberative materials assembled for the benefit of elected officials to help them reach a decision,\u201d according to CFOIC.\u201cWork product includes notes and memos on background information as well as preliminary drafts of documents that express a decision by an elected official. Elected officials may release, or authorize the release of, any work product prepared for them. C.R.S. \u00a7 24-72-202(6.5),\u201d CFOIC says.<\/p>\n<\/div>\n

But the bottom line drawn by the appeals court is the draft financial document in question was not \u201cwork product\u201d that was \u201cprepared for elected officials\u201d as the city argued.<\/p>\n

The ruling says the appeals court\u2019s decision could \u201cwell have been different\u201d if the city had provided adequate information about Durango City Council\u2019s purview in approving, denying or modifying financial audits for state review, but the city failed to do so and it bears the burden of proof of showing the documents in question are exempt from open records requests.<\/p>\n

The ruling also awards Simpson attorneys fees for the appeal, although the fees have not been determined at this time.<\/p>\n

Sixth Judicial District Judge Suzanne Carlson reduced the attorneys fees awarded<\/a> to him in district court in December before the appeals court ruled on the city\u2019s appeal. That total sum was reduced from $29,965 to $17,614 because hours worked by his Pagosa Springs attorney Matt Roane were \u201coverstated,\u201d according to a 6th Judicial District Court judge\u2019s order.<\/p>\n

Simpson did not respond to a request for comment for this story.<\/p>\n

City Attorney Mark Morgan said the decision favoring Simpson is \u201cdisappointing,\u201d but the judicial ruling did not clearly define what kind of documents qualify as \u201cwork product.\u201d<\/p>\n

\u201cYou want some clear direction from the court on how to handle this type of document or this class of documents going forward. And we didn\u2019t get that,\u201d he said.<\/p>\n

He said Durango and other municipalities could use more \u201clegislative clarity\u201d in similar disputes going forward.<\/p>\n

The city has maintained releasing drafts of its annual financial reports could deter private or third-party certified public accountants hesitant to work with it because incomplete drafts could misrepresent the city\u2019s finances and the accountants\u2019 work.<\/p>\n

\u201cWe want independent third party auditors to have free and open discussions with our staff about what we\u2019ve done right, what mistakes we\u2019ve made and what corrections we need to make,\u201d he said.<\/p>\n

Twenty-six other states already have laws on the books exempting draft financial documents from open records requests because the drafts will inevitably differ from the final product, and the final product submitted to the state is what\u2019s important to the public, he said.<\/p>\n

Examples include Florida, Kansas, Louisiana, Minnesota, Missouri, Nebraska, North Dakota, South Carolina and California, according to a brief Morgan provided.<\/p>\n

The city issued a news release announcing the Colorado Court of Appeals\u2019 decision Wednesday morning after The Durango Herald <\/em>inquired about it.<\/p>\n

The release says the appeals court\u2019s decision will affect every municipality in Colorado.<\/p>\n

Releasing draft financial documents \u2013 specifically, drafts of the city\u2019s annual financial report \u2013 before they are finalized by third-party auditors risks causing confusion or spreading misinformation because they aren\u2019t complete, the release says.<\/p>\n

Simpson has garnered a reputation for scrutinizing the city of Durango\u2019s finances, but the city has questioned his own conduct while serving on the volunteer IAB.<\/p>\n

The Board of Ethics is investigating Simpson after reviewing a complaint that Mayor Melissa Youssef filed against him in January.<\/p>\n

Youssef said in her complaint Simpson violated the state open records act and state anti-discrimination laws, adding that he \u201cput his personal vendetta against other city officials above the best interest of the city\u201d in his capacity as an IAB member.<\/p>\n

She said he held private email conversations about city business between himself and Councilor Olivier Bosmans and made false allegations about the city manager committing nepotism in hiring an interim chief financial officer, which in turn was an attempt to damage an interim chief financial officer\u2019s reputation.<\/p>\n

The ethics board\u2019s investigation<\/a> could either lead to a hearing or be dismissed, Morgan said last month. If a hearing is held and the ethics board finds Simpson violated an ethics code, City Council could publicly censure him or prohibit him from serving on city boards in the future.<\/p>\n

cburney@durangoherald.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Attorney says municipalities need \u2018legislative clarity\u2019 on what\u2019s exempt from CORA requests<\/p>\n","protected":false},"author":1,"featured_media":28236,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[133,950,1020,507,28,1373],"naviga_topic":[],"class_list":["post-28235","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","tag-courts","tag-durango","tag-durango-city-council","tag-durango-city-officials","tag-headlines","tag-litigation"],"acf":[],"author_name":"dh_admin","_links":{"self":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/28235","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/comments?post=28235"}],"version-history":[{"count":1,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/28235\/revisions"}],"predecessor-version":[{"id":80345,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/posts\/28235\/revisions\/80345"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media\/28236"}],"wp:attachment":[{"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/media?parent=28235"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/categories?post=28235"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/tags?post=28235"},{"taxonomy":"naviga_topic","embeddable":true,"href":"https:\/\/dh.durangoherald.com\/tj\/wp-json\/wp\/v2\/naviga_topic?post=28235"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}