In the weeks after two East High School deans were shot — when the public was clamoring for and demanding answers — The Denver Gazette submitted more than two dozen records requests to Denver Public Schools to shed light on the district’s response.

The Denver Gazette also wanted to better understand the scope of student pat downs, which, in part, led to the shooting of Wayne Mason and Eric Sinclair on March 22.

After 32 requests over the past six months for public information under the Colorado Open Records Act (CORA), the district has shown a pattern of delays, denials and obfuscation, an assessment shared by an expert on constitutional rights and by parents who organized after the shooting.

For months, parents and safety advocates have complained bitterly about the district’s perceived lack of transparency.

Although The Denver Gazette paid nearly $600, the district did not fulfill roughly 16% of these requests. While the majority of the CORA requests were granted, the district’s responses, more often than not, were less than informative.

“They continue to hide the ball,” said Steve Katsaros, co-founder of Parents-Safety Advocacy Group, which formed after the East High School shooting. “They don’t want us to get the information that we’re legally entitled to.”

Katsaros added: “We’re taxpayers. This is our stuff.”

Officials provided a variety of reasons for their denials, including a district claim that disclosing the information fields used in the Infinite Campus database amounts to divulging trade secrets and therefore was exempt from disclosure. Infinite Campus is web-based information system used to track student information.

The Denver Gazette had sought to better understand what student information is available to school officials through the portal.

And then there was the request for information on safety plans.

Individual student safety plans and pat-downs — such as the one performed on the alleged shooter, 17-year-old Austin Lyle — didn’t surface in the community lexicon until the public learned the Cherry Creek School District transfer student had been under a plan that required daily searches for weapons.

In the aftermath of the shooting, police and district officials — including Superintendent Alex Marrero — repeatedly used the term “safety plan” to describe the intervention strategy used for students like Lyle.

‘Jump through hoops’

Individual safety plans are relatively common.

These plans are used to curb problematic student conduct, which can include, among other things, fighting, drugs, suicidal ideation, weapons or violent tendencies, as well as routine behavioral concerns.

The day after the shooting, the board of education held an executive session — illegally, the courts later ruled — to discuss temporarily lifting the 2020 ban on armed police officers on campus. During a press conference to discuss returning police to the district’s comprehensive high schools, The Denver Gazette asked Marrero about the number of students on a safety plan.

Marrero declined to answer, saying the number fluctuates from day to day.

So, The Denver Gazette requested under CORA the number of East High School students under a safety plan on March 22.

Stacy Wheeler, the district’s records custodian, denied the request, asserting the district was “not in possession” of any documents related to the number of students on a safety plan.

A week later, The Denver Gazette requested the information again.

This time, the CORA language became acceptable to the district. The newspaper requested — with personally identifiable information redacted — the “Action and Intervention Plan,” colloquially called a “Safety Plan,” as well as the “Full Threat Appraisal” used to create the plan.

The district, it turned out, did have these records.

Only now, Wheeler’s denial cited the Family Educational Rights and Privacy Act, or FERPA, which are records not subject to disclosure. The district did not mention FERPA in its previous denial. 

“It’s too bad that they would make you jump through hoops to get the information,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.

Formed in 1987, the coalition promotes the freedom of the press and open access to government.

“I think that they knew what that (safety plans) was or should have known,” Roberts said. “The superintendent used the term.”

‘Delay and obfuscation’

Officials ultimately released aggregated data provided at the request of other media outlets on the number of threat assessments and students requiring a pat down. But they did so only after The Denver Gazette requested a meeting with the district’s attorneys.

“I think they are absolutely in the mindset of trying to reduce the number of documents that go out the door because they don’t want to be embarrassed,” said Will Trachman, general counsel for Mountain States Legal Foundation.

Headquartered in Colorado, Mountain States Legal Foundation is a nonprofit law firm dedicated to defending and expanding constitutional rights since 1977.

Trachman has previously served in the Department of Education as deputy assistant secretary in the Office for Civil Rights and as general counsel for the Douglas County School District.

Trachman has been on both sides of CORA as a requester and as a custodian of records.

After describing The Denver Gazette’s CORA experiences with Denver Public Schools, Trachman characterized the district’s strategy as “delay and obfuscation.”

“I generally find that they focus on the wrong things,” Trachman said.

Delays, denials and obfuscation are not the only tactics public agencies will deploy to keep information out of the hands of the public. They also use fees as a deterrent, experts concluded, citing, among other experiences, The Denver Gazette’s quest to obtain public records.   

State statute permits public agencies, after the first hour, to charge a fee for conducting research and retrieval of public documents.

Denver Public Schools charges $33.58 an hour — the maximum permitted under state law. (Inflation could boost the maximum rate to $41.34 next year, according to the Colorado General Assembly’s Legislative Council.)

The Denver Gazette paid $588.65 to fulfill five CORA requests.

But The Denver Gazette could have shelled out more.

In one request, The Denver Gazette asked for all the internal communications discussing media CORAs related to the East High shooting. The initial cost estimate for 3,788 emails was $2,149.12.

To reduce this fee, The Denver Gazette narrowed its public information request and paid $319.01 for the district to retrieve, review and redact 569 emails.

The Denver Gazette, however, received only a fraction of the estimated 569 responsive records: 130 emails and a log with 25 additional emails determined exempt by the district under its deliberative process.

A public agency may withhold documents for a number of specific reasons including, among others, proprietary information, certain criminal justice records, security plans, personal files, attorney-client privilege and those considered “deliberative.”

When invoked, the government body is asserting deliberative records contain material “so candid or personal that public disclosure is likely to stifle honest and frank discussion.”

Despite multiple attempts, Wheeler did not address the discrepancy. Nor did she offer a refund or offer to produce the missing 414 emails.

It was not until last week — more than two months after Denver Public Schools was notified of the discrepancy — that a full explanation and a refund was offered.

“The automated system pulled 569 emails that may have been responsive, but then staff members had to read through each of those emails to determine whether or not they were responsive,” Scott Pribble, a district spokesperson, said in an email.

In the end, only 250 of the estimated 569 emails were responsive to The Denver Gazette’s request, according to the district.

Pribble added: “Paying for the work to be completed does not allow you access to documents that are not responsive to your request, are exempt from disclosure, or are not subject to disclosure pursuant to law.”

Pribble offered $159.51 refund, which The Denver Gazette has not yet received.

‘They’d rather pay you off’

The cost to retrieve public information is based on the district’s estimates that Wheeler solicits from departments in possession of the requested records.

Payment is required in advance of fulfilling a request.

Because the amount of time required to research, retrieve and redact the responsive documents is an estimate, if fulfilling the request takes longer, the district will “request final payment prior to releasing the documents.”

Conversely, if fulfilling the CORA request takes less time than the estimate, Wheeler said the district would “issue a refund.”

Fees can be a real barrier to public access, Roberts of the Colorado Freedom of Information Coalition said, noting that taxpayers pay both for the collection and then the release of public information.

“Colorado has decided that people who request public records often have to pay for public records,” Roberts said.

Roberts added, “Maintaining and producing public records is part of government.”

Because of the way state statute is written, requesters have to trust that government agencies are not inflating the time required to retrieve public information and are actually doing the work.

It’s unclear how common, or uncommon, it is for the district to issue a refund.

In a separate CORA, The Denver Gazette requested documents showing how much requesters have overpaid since 2018. While no records exist prior to October 2020, Denver Public Schools has provided four refunds for a total of $838.24 to requesters, according to district data.

What is unknown is how often the district collects a fee.

The district demanded The Denver Gazette pay $772.34 to retrieve information about the number of CORA payments they have collected since 2018 and the total amount of collected fees.

Trachman, the Denver attorney, called the fees a perverse incentive. Public agencies, such as Denver Public Schools, he said, are induced to overestimate the time necessary to fulfill a request to receive greater fees.

The way Trachman sees it, by offering a refund now, the district is attempting to stave off a call to Steve Zansberg — a Denver First Amendment attorney and president of the Colorado Freedom of Information Coalition.

Zansberg recently prevailed in a lawsuit brought by a media coalition that included The Denver Gazette challenging the legality of the district’s March 23 executive session.

“What they’re doing is trying to get you to bear the cost of their overly broad estimate,” Trachman said. “I think they’d rather pay you off than have this issue litigated.”