The state’s second-highest court on Thursday agreed the Colorado Attorney General’s Office acted reasonably by refusing to provide two media outlets with records of police officers who are certified and, for misconduct-related reasons, decertified as law enforcement.

A three-judge panel for the Court of Appeals determined the Peace Officer Standards and Training (POST) Board qualifies as a “criminal justice agency,” with certain records subject to disclosure only at the discretion of government officials.

Further, although the official in charge of POST records did not document that she considered the public interest at the time she denied the outlets’ requests, the panel was satisfied with her later claims that she had done so.

“We reach this conclusion notwithstanding the absence of contemporaneous documentary evidence,” wrote Judge Robert D. Hawthorne in the April 27 opinion.

The case, spurred by the reporting of Christopher N. Osher at The Gazette in Colorado Springs and of the Invisible Institute in Chicago, prompted the appellate court to recognize that many state agencies that do not primarily or even minimally perform criminal investigations may nonetheless qualify as “criminal justice agencies” with greater discretion to withhold records.

“At a time when the public is demanding more transparency about how law enforcement officers exercise their judgment on such matters, the courts of Colorado have allowed state officials to shield from public view relevant information they possess on the work histories of officers,” said Osher.

Clarity Media Group, the parent company of Colorado Politics, also owns The Gazette.

Beginning in 2019, Osher and the Invisible Institute sent a series of requests to POST seeking data about the law enforcement officers certified and decertified in Colorado. Both had previously reported about officer misconduct and the Invisible Institute maintains a database of Chicago officers disciplined over a 30-year period.

The Department of Law, which is home to POST, determined the requests were subject to the Colorado Criminal Justice Records Act, which allows for greater withholding of information than the state’s primary disclosure law, the Colorado Open Records Act (CORA).

“Publicly disclosing the names of peace officers in response to your request threatens harm to ongoing investigations and to the safety of peace officers,” a spokesperson for the attorney general’s office wrote in response to one request, specifically citing the danger to undercover employees.

The Gazette and the Invisible Institute then asked a judge to find the government had abused its discretion by failing to balance the privacy interests of officers with the public’s interest. Also, they maintained the POST Board could not be a “criminal justice agency” because it actually operated more akin to a licensing agency — like the state’s dental board or Department of Motor Vehicles.

After a hearing, Denver District Court Judge J. Eric Elliff found POST facilitates and collects criminal background checks on officers, so it falls under the legal definition of criminal justice agency because of its “collection, storage, or dissemination of arrest and criminal records information.”

He also credited the testimony of Natalie Hanlon Leh, the chief deputy attorney general who denied the requests, that she did consider the public interest as she was required to do — even if emails to the reporters did not say so.

Elliff noted that he “would have balanced things a little differently than the attorney general’s office did,” but upheld Hanlon Leh’s decision to deny the records.

The plaintiffs appealed to the Court of Appeals where, during oral arguments in March, the three judges appeared uncomfortable that any state body that handles criminal records as part of its licensing duties is legally a “criminal justice agency.”

“Would your rule mean that essentially every state agency becomes a criminal justice agency?” Judge Karl L. Schock asked the attorney general’s office.

“Under your argument, any agency that collects criminal records information as part of a background check is a criminal justice agency and is no longer subject to CORA, right? Wouldn’t that drive a huge hole through CORA?” added Judge Lino S. Lipinsky de Orlov.

Hawthorne, a retired judge who sat on the panel at the chief justice’s assignment, observed, “We could conclude potentially that the dental board is a criminal justice agency.”

“It’s possible, your honor,” conceded Assistant Solicitor General Brittany Limes Zehner, but that is how the law is written.

The panel ultimately agreed with the government that POST’s “collection and storage” of criminal records qualified it as a criminal justice agency. The court did not address the broader implications for other agencies, but Hawthorne noted that “any” activity directly related to criminal records triggers the more stringent Colorado Criminal Justice Records Act.

Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition, said the ruling “underscores how easy it is for criminal justice agencies to withhold records that may be very important for journalists and the public to obtain and analyze.”

Osher said he hopes state lawmakers will clarify that officer certification and decertification records fall under CORA, and a governmental body does not become a criminal justice agency “merely because it collects arrest and criminal records information.”

The attorney general’s office declined to comment.

The case is The Gazette et al. v. Bourgerie.