Denver Public Schools is proposing changes to its CORA policy that would allow the district to combine related open-records requests for fee purposes, raising transparency questions from advocates about how broadly and retroactively the policy could be applied.

The proposed update to the policy says: “Multiple record requests submitted from an individual or entity, related to the same or similar subject matter, will be treated as a single request for purposes of assessing applicable fees.”

It remains unclear how district staff would decide whether multiple requests under the Colorado Open Records Act (CORA) should be treated as involving the same subject matter.

The policy also does not define the time frame for treating separate requests as one for reimbursement purposes.

Scott Pribble, a district spokesperson, did not say what and whether the district has any internal guidance or standards that define what qualifies as the “same subject matter.”

He did say the updated policy provided to the Board of Education for Wednesday’s meeting is not a new policy.

“The proposed updates to the district’s CORA policy formalize the practice that has been in place for several years,” Pribble said in an email.

“The changes are designed to prevent the fragmentation of related records requests that have been made to skirt the “one-hour free” rule, whether that has been done intentionally or not,” he said.

State statute doesn’t currently permit this type of aggregation.

Jeff Roberts, a CORA expert, noted that the act only says a custodian may charge, after the first hour, up to $41.37 an hour for research and retrieval.

Roberts is the executive director of the Colorado Freedom of Information Coalition, which was formed in 1987 to promote freedom of the press and open access to government.

That’s something state Sen. Cathy Kipp has tried to change.

The Fort Collins Democrat and president pro tempore has introduced similar proposals three times and they have been rejected. In one instance, the bill passed the Colorado House and Senate, but was vetoed by Gov. Jared Polis because of a carve-out that would exempt media requests.

Kipp said she was not likely to introduce it again, without getting the new governor’s buy-in, saying she wouldn’t “want it to fail again.”

“I want to make the job of our records custodians easier,” Kipp said.

Roberts said the coalition opposed Kipp’s bills.

“We opposed those bills, but at least they included a 14-day timeframe in which a single requester was asking for ‘information pertaining to facially similar content,’” Roberts said.

Roberts criticized DPS’ version, saying the policy doesn’t specify that similar CORA requests would be combined for fee purposes submitted within two days, two weeks or two months.

But there’s a deeper right-to-know issue, Roberts said.

A journalist will likely make multiple record requests while investigating an issue.

“I don’t think those should be treated as one request for fee purposes or that CORA intends for them to be treated as one request,” Roberts said.

It’s not a hypothetical.

Earlier this year, The Denver Gazette requested travel records from the Cherry Creek School District after issues involving former Superintendent Chris Smith led the board to impose a temporary ban on most travel.

The requests were made over a week.

After invoking a two-week extension, citing a backlog of requests and an office move, the district issued an invoice for $1,241.

‘The records custodian gets to decide’

Recommended by staff, the policy change is set to go into effect on Wednesday.

DPS officials say the proposal would formalize a records-handling approach the district has already been using in practice.

Recent records requests offer a glimpse into how the district says it already applies that approach.

In February, DPS charged The Denver Gazette $41.37 for a follow-up CORA request seeking a single annual audit that had not been included in a previous records release. Stacy Wheeler, the district’s CORA officer, said staff spent one hour locating the original set of audits and another full hour locating the additional audit — despite the records already being publicly available on the district’s website. The reporter did not know they were available on the website until after making the request.

Because CORA allows agencies to charge after the first free hour of staff time, the separate requests resulted in a fee.

Wheeler explained that the original request would not have produced the final requested audit for fiscal year 2012-2013.

In government accounting, “FY 2012” generally would refer to the fiscal year ending in 2012 — which for DPS appears to mean the audit dated June 30, 2012.

The district’s reasoning appears to break down based on the records it actually provided.

The original response included audits dated June 30, 2009 through June 30, 2012 — consecutive annual reports pulled from the same series of publicly available financial documents. The follow-up request sought only the next audit in that same sequence, dated June 30, 2013, raising questions about how locating one additional report from the same set reasonably required another full hour of staff search time.

Critics of the district’s proposed policy changes say the example illustrates how DPS is already effectively bundling related requests in practice while still charging requesters as though each search required significant new staff time.

“I understand there are people who try to game the system by breaking their CORA requests into multiple parts in an attempt to get multiple free hours of research and retrieval,” Roberts said.

“But this policy doesn’t define what is meant by the same or similar subject matter and it doesn’t set a time frame in which requests are made. The records custodian gets to decide what qualifies as the same subject matter.”

The policy announcement comes as the district has faced mounting criticism over its handling of public information and transparency.

In recent years, DPS has:

• Conducted negotiations over changes to Superintendent Alex Marrero’s contract behind closed doors.
• Required nondisclosure agreements of some staff.
• Held an illegal executive session to discuss policy matters with a Denver judge ruling the board had violated Colorado’s open meeting law when privately discussing changing the district’s policy regarding police officers on school campuses.

In the latter, Marrero specifically requested the secret meeting to privately discuss returning school resource officers, or SROs, to the district’s comprehensive high schools following a shooting at East High School that wounded two administrators.

The district has also drawn criticism from open-records advocates over how it interprets CORA requests.

In the weeks after the East High shooting, The Denver Gazette submitted more than two dozen CORA requests to better understand the scope of student pat-downs, which, in part, led to the shooting of Wayne Mason and Eric Sinclair. Both are suing the district.

Will Trachman, who 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, has previously characterized the district’s strategy as “delay and obfuscation.”