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HomeMy WebLinkAbout2018CV172 - STACY LYNNE V. THE CITY OF FORT COLLINS; DARIN ATTEBERRY; CARRIE DAGGETT; CHRISTOPHER VAN HALL - 001 - COMPLAINTRECEIVED DISTRICT COURT Larimer County, Colorado Court Address: 201 LaPorte Avenue Fort Collins, Colorado 80521 Plaintiff: Stacy Lynne V. Defendants: City of Fort Collins Darin Atteberry, City Manager Carrie Daggett, City Attorney Christopher Van Hall, Assistant City Attorney AUG 0 9 2018 Y ATTORNEY ?018 AUG -9 Phi 4: 16 r1l nI INS MP IM c !un. COURT USE ONLY A Case Number: r � (IQ 1 -12— Division: Courtroom: DISTRICT COURT CIVIL SUMMONS TO THE ABOVE NAMED DEFENDANT: Christopher Van Hall YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court an answer or other response to the attached Complaint. If service of the Summons and Complaint was made upon you within the State of Colorado, you are required to file your answer or other response within 21 days after such service upon you. If service of the Summons and Complaint was made upon you outside of the State of Colorado, you are required to file your answer or other response within 35 days after such service upon you. Your answer or counterclaim must be accompanied with the applicable filing fee. If you fail to file your answer or other response to the Complaint in writing within the applicable tiM%pgnod, the Court may enter judgment by default against you for the relief demanded i he Complai withpelf, 60 Dated: August 9, 2018 Clerk of Co nature Address of Plaintiff: 305 West Magnolia Street #282 Fort Collins. Colorado 80521 Plaintiffs Phone Number: 970-402-1582 �� O �.'' .�Q, O•' ••.......• ..y This Summons is issued pursuant to Rule 4, C.R.C.P., as amended. A copy of the Complaint must be served with this Summons. This form should not be used where service by publication is desired. WARNING: A valid summons may be issued by a lawyer and it need not contain a court case number, the signature of a court officer, or a court seal. The plaintiff has 14 days from the date this summons was served on you to file the case with the court. You are responsible for contacting the court to find out whether the case has been filed and obtain the case number. If the plaintiff files the case within this time, then you must respond as explained in this summons. If the plaintiff files more than 14 days after the date the summons was served on you, the case may be dismissed upon motion and you may be entitled to seek attorney's fees from the plaintiff. TO THE CLERK: If the summons is issued by the clerk of the court, the signature block for the clerk or deputy should be provided by stamp, or typewriter, in the space to the left of the attorney's name. JDF 600 R10-13 DISTRICT COURT CIVIL SUMMONS DISTRICT COURT Larimer County, Colorado Court Address: 201 LaPorte Avenue Fort Collins, Colorado 80521 Plaintiff(s): Stacy Lynne V. Defendant(s): City of Fort Collins Darin Atteberry, City Manager Carrie Daggett, City Attorney Christopher Van Hall, Assistant City Attorney Attorney or Party Without Attorney (Name and Address): Stacy Lynne 305 West Magnolia Street #282 Fort Collins, Colorado 80521 Phone Number: 970-402-1582 FAX Number: n E-mail: stacy_lynne@comcast.net IM WG -9 PPS �: 0 COURT USE ONLY Case Number: I<0 V r7Z Division /[! Courtroom DISTRICT COURT CIVIL (CV) CASE COVER SHEET FOR INITIAL PLEADING OF COMPLAINT, COUNTERCLAIM, CROSS -CLAIM OR THIRD PARTY COMPLAINT 1. This cover sheet shall be filed with each pleading containing an initial claim for relief in every district court civil (CV) case, and shall be served on all parties along with the pleading. It shall not be filed in Domestic Relations (DR), Probate (PR), Water (CW), Juvenile (JA, JR, JD, JV), or Mental Health (MH) cases. Failure to file this cover sheet is not a jurisdictional defect in the pleading but may result in a clerk's show cause order requiring its filing. 2. Check one of the following: OThis case is governed by C.R.C.P. 16.1 because: - The case is not a class action, domestic relations case, juvenile case, mental health case, probate case, water law case, forcible entry and detainer, C.R.C.P. 106, C.R.C.P 120, or other similar expedited proceeding; AND - A monetary judgment over $100,000 is not sought by any party against any other single party. This amount includes attorney fees, penalties, and punitive damages; it excludes interest and costs, as well as the value of any equitable relief sought. ❑This case is not governed by C.R.C.P. 16.1 because (check ALL boxes that apply): JDF 601SC R3-18 DISTRICT COURT CIVIL (CV) CASE COVER SHEET Page 1 of 2 ❑The case is a class action, domestic relations case, juvenile case, mental health case, probate case, water law case, forcible entry and detainer, C.R.C.P. 106, C.R.C.P. 120, or other similar expedited proceeding. ❑A monetary judgment over $100,000 is sought by any party against any other single party. This amount includes attorney fees, penalties, and punitive damages; it excludes interest and costs, as well as the value of any equitable relief sought. ❑Another party has previously indicated in a Case Cover Sheet that the simplified procedure under C.R.C.P. 16.1 does not apply to the case. NOTE: In any case to which C. R. C. P 16.1 does not apply, the parties may elect to use the simplified procedure by separately filing a Stipulation to be governed by the rule within 49 days of the at -issue date. See C.R.C.P. 16.1(e). In any case to which C.R.C.P. 16.1 applies, the parties may opt out of the rule by separately filing a Notice to Elect Exclusion (JDF 602) within 35 days of the at -issue date. See C.R.C.P. 16.1(d). ❑A Stipulation or Notice with respect to C.R.C.P. 16.1 has been separately filed with the Court, indicating: ❑C.R.C.P. 16.1 applies to this case. ❑C.R.C.P. 16.1 does not apply to this case. 3. ❑This party makes a Jury Demand at this time and pays the requisite fee. See C.R.C.P. 38. (Checking this box is optional.) 0 By checking this box, I am acknowledging I am filling in the blanks and not changing anything else on the form. ❑ By checking this box, I am acknowledging that I have made a change to the original content of this form. Date: August 9. 2018 _ Sign re doarty or Attorney for Party JDF 601SC R3-18 DISTRICT COURT CIVIL (CV) CASE COVER SHEET Page 2 of 2 District Court, Larimer County, Colorado 201 LaPorte Avenue Fort Collins, Colorado 80521 PLAINTIFF: Stacy Lynne DEFENDANTS: City of Fort Collins Darin Atteberry Carrie Daggett Christopher Van Hall Stacy Lynne 305 West Magnolia Street #282 Fort Collins, Colorado 80521 970-402-15 82 stacy_lynne@comcast.net ?018 AUG -9 PM 4: 17 ��� ►�� ��,f �+sir-� G��, I� i COURT USE ONLY Case Number: [SM-121 Division: Courtroom: l� COMPLAINT AND APPLICATION FOR ORDER TO SHOW CAUSE Plaintiff Stacy Lynne brings this complaint and application for order to show cause under the Colorado Open Records Act (CORA) per Colorado Revised Statutes (C.R.S.) 24-72-201 et seq. JURISDICTION AND VENUE 1. Plaintiff Stacy Lynne is an investigative journalist residing in Fort Collins, Colorado. 2. Defendant City of Fort Collins is a home -rule municipality in Fort Collins, Larimer County, Colorado. 3. Defendants City Manager Darin Atteberry, City Attorney Carrie Daggett, and Assistant City Attorney Christopher Van Hall are hired public employees in Fort Collins, Colorado. 4. Jurisdiction is proper per C.R.S. 24-72-204(5). 5. Venue is proper per C.R.S 98(b)(2). August 9, 2018 Page 1 of 16 Complaint and Application for Order to Show Cause THE PARTIES 6. Plaintiff Stacy Lynne resides in Fort Collins, Colorado in Larimer County. This uncommon inclusion of a basic introduction to the Plaintiff is necessary here because Stacy Lynne is routinely denigrated and disparaged when opposing parties respond or reply. Stacy Lynne previously saved this introductory material for a rebuttal ... to counter the opponent's fallacies after she was attacked. But that approach — waiting to set the record straight until after the reader is deceived by the opponent — has not proved beneficial in the past. First impressions stick. And, if the Court's first impression about a Plaintiff comes from the Defendant who is motivated to skew the truth, then the overpowering impact of emotionally distorted bias prevails. Simply: Stacy Lynne is trying to save everyone time and confusion by laying a foundation that is based on accuracy and clarity. Stacy Lynne is an investigative journalist.' She has invested more than 10 years investigating local government issues and for the past five years, she has added a concentration on the criminal justice system. Her work has been included in multiple criminal justice cases through Rule 16 discovery disclosures and appeals processes. Stacy Lynne has media credentials issued by the Eighth Judicial District. She has produced full-length documentary films and numerous mini-series. Stacy Lynne's work has resulted in countless references in mainstream media for more than a decade. The United Nations Educational, Scientific and Cultural Organization (UNESCO) provides a resonating definition of investigative journalism: "Investigative Journalism means the unveiling of matters that are concealed either deliberately by someone in a position of power, or accidentally, behind a chaotic mass of facts and circumstances — and the analysis and exposure of all relevant facts to the public."' Stacy Lynne is not a daily news reporter. The Columbia School of Journalism says, "Daily news reporting is seldom investigative, it is mostly reactive."3 As an investigative journalist, much of Stacy Lynne's work is conducted in confidential settings, with confidential (and sometimes anonymous) sources, outside of the public view. Of course, she uses all of the usual public sources of information... police records, court records, municipal records, county and state records, open records searches and the like, so that she can verify information using original source documents and credible people. But her name and her face are not instantly recognizable because she goes about her work quietly. Intentionally absent is a desire for "publicity". Defined by Colorado Revised Statutes, Department of Regulatory Agencies. Stacy Lynne is legally and ethically obligated to tell people that she is a journalist -- she does not use the term lightly, inaccurately, or for personal gain. Z www.unesco.org/investigative-joumalism 3 Chapter 1. Defining Investigative Reporting. Columbia School of Journalism. August 9, 2018 Page 2 of 16 Complaint and Application for Order to Show Cause Stacy Lynne is also a private -sector consultant. In this realm, she is also largely out of the public view. This low -profile approach helps the people and organizations that she works with trust the integrity of her character and her methods. They know that Stacy Lynne will use discretion and the law to protect their rights and need for confidentiality. Compounding the significant (but often unrecognized) differences between investigative journalism and daily news reporters is the current state of affairs that is plaguing our country: fake news, opinion pieces masquerading as facts, infotainment instead of evidence -based articles, decision -making by elected officials that is based on pressure from special interest groups, and policies that are adopted as a result of narrow-minded outcome -determinative biases. In contrast to the disastrous reality that is mainstream mass media, these are the words that fill Stacy Lynne's world: credibility, integrity, accuracy, thoroughness, facts, evidence, reliable verification methods, process transparency, analysis, decision -making based on the scientific method. 7. Defendants — the City of Fort Collins; City Manager Darin Atteberry, City Attorney Carrie Daggett, and Assistant City Attorney Christopher Van Hall are being sued in their official capacities as public employees (hired, not elected) in a council-manager form of government. August 9, 2018 Page 3 of 16 Complaint and Application for Order to Show Cause STATUTORY AUTHORITY 8. C.R.S. 24-72-201. Legislative declaration. It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise specifically provided by law. Open records act creates a general presumption in favor of public access to government documents, exceptions to the act must be narrowly construed, and an agreement by a governmental entity that information in public records will remain confidential is insufficient to transform a public record into a private one. Daniels v. City of Commerce City, 988 P.2d 648 (Colo. App. 1999). Section clearly eliminates any requirement that a person must show a special interest in order to be permitted access to particular public records. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974); Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996). Official is unauthorized to deny access in absence of specific statutory provision. This section establishes the basic premise that in the absence of a specific statute permitting the withholding of information, a public official has no authority to deny any person access to public records. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). 9. C.R.S. 24-72-202 (6)(a)(I). Definitions. "Public records" means and includes all writings made, maintained, or kept by the state, any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5-121 (2), C.R.S., or political subdivision of the state, or that are described in section 29-1-902, C.R.S., and held by any local -government -financed entity for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. 10. C.R.S. 24-72-203. Public records open to inspection. (1) (a) All public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise provided by law, but the official custodian of any public records may make such rules with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or the custodian's office. (2) (a) If the public records requested are not in the custody or control of the person to whom application is made, such person shall forthwith notify the applicant of this fact, in writing if requested by the applicant. In such notification, the person shall state in detail to the best of the person's knowledge and belief the reason for the absence of the records from the person's custody or control, the August 9, 2018 Page 4 of 16 Complaint and Application for Order to Show Cause location of the records, and what person then has custody or control of the records. 11. C.R.S. 24-72-204. Allowance or denial of inspection — grounds — procedure — appeal — definitions (5) (a) Except as provided in subsection (5.5) of this section, any person denied the right to inspect any record covered by this part 2 or who alleges a violation of section 24-72-203 (3.5) may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why the custodian should not permit the inspection of such record; except that, at least fourteen days prior to filing an application with the district court, the person who has been denied the right to inspect the record shall file a written notice with the custodian who has denied the right to inspect the record informing the custodian that the person intends to file an application with the district court. During the fourteen -day period before the person may file an application with the district court under this subsection (5)(a), the custodian who has denied the right to inspect the record shall either meet in person or communicate on the telephone with the person who has been denied access to the record to determine if the dispute may be resolved without filing an application with the district court. The meeting may include recourse to any method of dispute resolution that is agreeable to both parties. (b) Hearing on the application described in subsection (5)(a) of this section must be held at the earliest practical time. Unless the court finds that the denial of the right of inspection was proper, it shall order the custodian to permit such inspection and shall award court costs and reasonable attorney fees to the prevailing applicant in an amount to be determined by the court... August 9, 2018 Page 5 of 16 Complaint and Application for Order to Show Cause BACKGROUND AND SUMMARY OF THE CASE January 2018 As follow-up to a 2015 interest in the process related to a smoking ban in downtown Fort Collins, in 2018 Stacy Lynne began an in-depth investigation into the no smoking ordinance. Her 2015 curiosity about the smoking ban was re -ignited by the stories people were telling about being arrested and taken to jail for smoking in public. The January 2018 no smoking ordinance investigation included open records access requests from the municipal court, interviews with downtown business owners and employees, and an interview with a lieutenant currently employed at Fort Collins Police Services. It was during the research of the smoking ordinance on the City's website that she noticed a reference to the sign code update in a city council agenda item summary. February 1 and February 7, 2018 Sign code update public meetings were held at the Museum of Discovery and the Drake Centre. Stacy Lynne attended the public meetings because of potential overlap with the no smoking ordinance, and because the City claimed it was concerned about privately -owned business sign "aesthetics" in downtown Fort Collins. The public meetings were sparsely attended. Stakeholders were noticeably absent. The changes that Noah Beals (Senior City Planner) and Jeremy Call (City Contractor from Logan Simpson) presented were substantial. The few people who attended both public meetings were given voting devices, shown pictures of local business signs from the downtown zone, and then the attendees (sign companies, real estate agents, former city board/commission members, and the like) were told to vote on the changes to the privately -owned signs. Due to the extraordinary exclusion of business owners, building owners, landlords and tenants, and community members — all of whom will be directly impacted by sign code changes — Stacy Lynne changed her focus from the smoking ban ordinance to the sign code update. She walked door to door to talk with business owners about their thoughts regarding the sign code update. The business owners en masse did not know about the public meetings; and, they were unaware of the depth and breadth of the "concerns" that Noah Beals and Jeremy Call were "reconsidering". The information that Stacy Lynne provided to the business owners during their conversations about the process was strictly limited to materials that were disseminated by Noah Beals and Jeremy Call. The same materials were also posted on Facebook @Focus Fort Collins. February 15, 2018 Business owners contacted Stacy Lynne as soon as a well -attended Downtown Business Association membership meeting concluded. The business owners told Stacy Lynne that Noah Beals told a large group of downtown business owners that no votes were taken at the public sign code update meetings. The business owners were emotionally charged when they told Stacy Lynne what Noah Beals said during the meeting because there was a glaring discrepancy: Stacy Lynne told business owners that votes were taken. Noah Beals told the business owners that no votes were taken. August 9, 2018 Page 6 of 16 Complaint and Application for Order to Show Cause February through August 2018 See the General Facts and Grounds for Motion to Show Cause for a chronological accounting of events that are supported by written communications between the parties (included as Exhibits). August 7, 2018 Assistant City Attorney Christopher Van Hall claimed in an email to Stacy Lynne that City Attorney Carrie Daggett is not the custodian of the withheld records (even though Ms. Daggett has acted in that capacity for the past five months). Attorney Christopher Van Hall wrote that Tom Leeson, Director of Community Development and Neighborhood Services, is the custodian of the withheld records (even though Mr. Leeson has not been acting in that capacity and has not been involved in this CORA dispute until August 6, 2018). Assistant City Attorney Christopher Van Hall said that Mr. Leeson is allowed to assert attorney -client privilege and Van Hall cited Law Offices of Bernard D. Morely, P.C. v. MacFarlane, 647 P.2d 1215, 1220 (Colo. 1982)(en banc)("...the attorney -client privilege exists for the personal benefit and protection of the client who holds the privilege, and that it must be asserted by the client"). The facts in this case show that City Attorney Carrie Daggett withheld CORA records under attorney -client privilege. But Attorney Van Hall says Attorney Daggett is not the custodian of the records even though Attorney Daggett previously claimed she withheld records under attorney -client privilege. Attorney Van Hall's citation of Law Offices of Bernard D. Morely, P. C. v. MacFarlane, 647 P.2d 1215, 1220 (Colo. 1982)(en banc) is odd — and potentially comical — because that case and all of the collaterally -cited cases that are linked to it, focuses on the crime -fraud exception to attorney -client privilege.' Obviously, attorney -client privilege exists as safeguards to our system of justice. However, the privilege is not absolute. But for now, that is not the point. This is: Tom Leeson is not an attorney. Noah Beals is not Tom Leeson's client. There is no attorney -client relationship between Tom Leeson and Noah Beals. And so, there is no legal justification for the withholding of records under that privilege... especially because the records are being withheld under attorney -client privilege (as Attorney Carrie Daggett claimed in this case). Additionally, if Tom Leeson suddenly appears as the custodian of the records, or even if he was just thrown in at the end of this pre -district court process, then Mr. Leeson has a verifiable conflict of interest in that capacity. This is why: Mr. Leeson has an increased personal interest in withholding potentially incriminating communications (and thereby pretending they are attorney -client privileged) because he has been dishonest (during a public a In Law Offices of Bernard D. Morely, P. C. v. MacFarlane, 647 P.2d 1215, 1220 (Colo. 1982)(en banc). Footnote [5]: "Recently, in Caldwell v. District Court, Colo. 644 P.2d 26 (Colo. 1982), we examined the applicability of the crime -fraud exception to material evidencing an attorney's involvement in civil fraud, in the context of a request for production of documents in the possession of the attorney. We held that privilege gives way where civil fraud is alleged and the proponent of the crime -fraud exception makes a showing that there is "a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney -client privilege has occurred."... August 9, 2018 Page 7 of 16 Complaint and Application for Order to Show Cause Fort Collins City Council meeting) about Noah Beals and/or the City's intent and information about the sign code update. But this is where the City's communications become more convoluted: Tom Leeson and Noah Beals must be represented by an attorney — that attorney was Carrie Daggett until August 6, 2018, when Attorney Van Hall said Daggett was not the custodian of the withheld records, but that the custodian was Tom Leeson — a planner by trade, not an attorney. Possibly appropriate here: C.R.S. 13-93-101(1) says, "No person shall be permitted to practice as an attorney- or counselor -at -law or to commence, conduct, or defend any action, suit, or plaint in which he or she is not a party concerned in any court of record within this state, either by using or subscribing his or her own name or the name of any other person, without having previously obtained a license of other authorization to practice law pursuant to the supreme court's rules governing admission to the practice of law in Colorado. And, C.R.S. 13- 98-108, "Any person who, without having a license from the supreme court of this state so to do, advertises, represents, or holds himself or herself out in any manner as an attorney... is guilty of contempt of the supreme court of this state..." If Tom Leeson is truly the custodian of the records who withheld documents from this CORA request under attorney -client privilege as Attorney Van Hall claimed on August 7, 2108, then why wasn't Tom Leeson communicating with Stacy Lynne for the past five months? And, when the CORA was initially filed, why didn't Christine Macrina (Boards and Commissions Coordinator) tell Stacy Lynne that Tom Leeson was the custodian of the records? Why was a Boards and Commissions Coordinator even involved in this CORA? When Stacy Lynne asked Ms. Macrina for the name of the appropriate custodian of the records, why did Ms. Macrina provide Attorney Van Hall's name instead of Tom Leeson's? And why did Attorney Van Hall fail to reply to the letter asking for him (as the records custodian) to comply with CORA statutes? And if Attorney Carrie Daggett was never the custodian of the CORA request, then why was she acting as the custodian until the very last day of negotiations? Stacy Lynne hopes that Caldwell v. District Court (see Footnote 4) does not become more relevant than it is now. But at this stage in the process, and with the actions of the City, it looks possible. But then there is this: "Privileges for attorney -client communication and attorney work product established by common law, though incorporated into open records law, are waived by any voluntary disclosure by privilege holder to a third person. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987)." And this: "Generally one who acts in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counseling, advising and assisting him in connection with these rights and duties is engaged in the practice of law." Denver Bar Assn v. Pub. Utils. Comm'n, 154 Colo. 273, 391 P.2d 467 (1964). August 9, 2018 Page 8 of 16 Complaint and Application for Order to Show Cause All of that aside... even if the City of Fort Collins is allowing Tom Leeson to claim attorney client -privilege between himself (as the so-called custodian of the records) and Noah Beals (the subject of the CORA request), then the privilege log (as explicitly outlined by District Court Judge Devin R. Odell in John Doe and Jane Doe v. The Poudre School District) is still due. August 9, 2018 Page 9 of 16 Complaint and Application for Order to Show Cause GENERAL FACTS AND GROUNDS FOR MOTION TO SHOW CAUSE 12. March 19, 2018: Colorado Open Records Act request for "any and all documents — including call logs and text messages — between Noah Beals (Senior City Planner), and any and all other people as related in any and all ways to the sign code update". (Exhibit 1) 13. March 22, 2018: Email from Christine Macrina, Boards and Commissions Coordinator, to Stacy Lynne with estimate of CORA cost. (Exhibit 2) 14. March 23, 2018: Email from Stacy Lynne to Christine Macrina with request to narrow the search dates. (Exhibit 3) 15. March 23, 2018: Email from Christine Macrina to Stacy Lynne confirming narrowed request. (Exhibit 4) 16. March 23, 2018: Email from Christine Macrina to Stacy Lynne with estimated cost for narrowed search request. (Exhibit 5) 17. March 26, 2018: Email from Stacy Lynne to Christine Macrina confirming payment amount for CORA request. (Exhibit 6) 18. April 15, 2018: Email from Stacy Lynne to Christine Macrina amending the request dates to include through April 16, 2018. (Exhibit 7) 19. April 18, 2018: Letter from Christine Macrina to Stacy Lynne. This letter was provided when Stacy Lynne requested written documentation for the City's grounds for denial of public records. The City claimed attorney -client privilege and said, "the City is not required to provide a log or state the contents of the emails we are withholding". A flash drive containing a portion of the public records requested was provided. (Exhibit 8) 20. April 20, 2018: Letter from Stacy Lynne to Assistant City Attorney Christopher Van Hall. Mr. Van Hall's name was provided by Christine Macrina as the appropriate contact person to communicate with about the denial of public records. Stacy Lynne's letter requested specific statutory citations to the withheld records and a privilege log. The letter also referenced in detail Judge Devin R. Odell's ruling related to privilege logs in John Doe v. Jane Doe v. The Poudre School District. Per Judge Odell's example, Stacy Lynne requested this from the City: In order for the City of Fort Collins to comply with the legislative intent and the plain language as written in the Colorado Open Records Access laws and to satisfy the federal laws under the Freedom of Information Act, please provide: August 9, 2018 Page 10 of 16 Complaint and Application for Order to Show Cause 1. An index listing the title of each document withheld, including: a. the date of the document b. the identity of the author and its recipients c. a detailed and factual description of the document (without revealing the exempt material) d. the statutory exemption claimed for that item or category. 2. To the extent that the City is withholding documents because it contends that they are not "public records" under CORA, include those documents in the index to meet its burden under Wick Commc'ns. 3. I will expect this information within three days. (Exhibit 9) 21. April 24, 2018: Email from Christine Macrina to Stacy Lynne confirming the explicit privilege log would be provided at an additional cost of $75.00. (Exhibit 10) 22. April 25, 2018: Email from Christine Macrina to Stacy Lynne retracting the City's agreement to provide the explicit privilege log. The City said it would provide only a summary list of documents. (Exhibit 11) 23. April 25, 2018: Email from Stacy Lynne to Christine Macrina confirming $75.00 for the explicit privilege log. (Exhibit 12) 24. April 25, 2018: Email from Stacy Lynne to Christine Macrina asking to delay the fulfillment of the request until clarification of the City's intent with the explicit privilege log and the City's summary list. (Exhibit 13) 25. August 1, 2018: Email from Mary Donaldson, Executive Legal Administrative Assistant, to Stacy Lynne regarding S Lynne letter dated July 24, 2018. (Exhibit 14) 26. August 1, 2018: Letter from City Attorney Carrie Daggett to Stacy Lynne restating the City's interest in providing a vague privilege log of withheld records. (Exhibit 15) 27. August 1, 2018: Email from City Attorney Carrie Daggett to Stacy Lynne saying, "the City Attorney's Office won't be providing a response to you regarding your April 20 open records request..." (included as an exhibit to Exhibit 15 above). (Exhibit 16) 28. July 24, 2018: Letter NOTICE OF INTENT TO FILE FOR AN ORDER TO SHOW CAUSE PURSUANT TO COLORADO REVISED STATUTES (C.R.S. 24-72-204(5)(a) COLORADO OPEN RECORDS ACT (CORA) from Stacy Lynne to City Attorney Carrie Daggett, City Manager Darin Atteberry, City Clerk Delyn Coldiron, Christine Macrina. (Exhibit 17) 29. August 6, 2018: Email from Stacy Lynne to City Attorney Carrie Daggett correcting inaccurate statements in Daggett's August 1, 2018 letter about Stacy Lynne's NOTICE August 9, 2018 Page 11 of 16 Complaint and Application for Order to Show Cause OF INTENT letter, including a reminder to the City that the 14-day statutory requirement to communicate per C.R.S. 24-72-204(5)(a) is the responsibility of the City. (Exhibit 18) 30. August 6, 2018: Email from Tom Leeson, AICP, Community Development and Neighborhood Services Director, to Stacy Lynne regarding conferring per statute. (Exhibit 19) 31. August 6, 2018: Email from Tom Leeson to Stacy Lynne to summarize the phone conversation held to attempt out -of -court resolution to the CORA dispute. (Exhibit 20) 32. August 7, 2018: Email from Stacy Lynne to Tom Leeson adding to and clarifying Leeson's email summary of the phone conversation, including concern for Tom Leeson's sudden appearance as the custodian of the attorney -client privileged withheld documents. (Exhibit 21) 33. August 7, 2018: Email from Assistant City Attorney Christopher Van Hall to Stacy Lynne claiming that: City Attorney Carrie Daggett is not the custodian of the withheld records; that Tom Leeson is the custodian of the withheld records; and, that Law Offices of Bernard D. Morely, P. C. v. MacFarlane, 647 P.2d 1215, 1220 (Colo. 1982)(en banc) is relevant. (Exhibit 22) This is worth briefly repeating here, and for the deeper discussion, see the above section titled BACKGROUND AND SUMMARY OF THE CASE.... The Morely case and all the collaterally -cited cases involve crime -fraud exception to attorney -client privilege. 34. August 8, 2018: The City of Fort Collins, City Manager Darin Atteberry, City Attorney Carrie Daggett, and Assistant City Attorney Christopher Van Hall continue to deny full access to the requested public records and they refuse to provide a complete privilege log of the records withheld as alleged to be "attorney -client privilege". August 9, 2018 Page 12 of 16 Complaint and Application for Order to Show Cause CLAIM FOR RELIEF Violation of Colorado Open Records Act C.R.S. 24-72-204(5) 35. All paragraphs are restated as if fully contained herein. 36. The records requested on March 19, 2018 are public records as defined in C.R.S. 24-72- 202(6)(a)(I). 37. The City of Fort Collins and Defendants Darin Atteberry, City Attorney Carrie Daggett, and Assistant City Attorney Christopher Van Hall failed to adequately respond to Stacy Lynne's March 19, 2018 CORA request and have unlawfully denied full access to the requested public records. 38. The City of Fort Collins and Defendants Darin Atteberry, City Attorney Carrie Daggett, and Assistant City Attorney Christopher Van Hall were not willing to adequately resolve this dispute during a telephone conference between Tom Leeson and Stacy Lynne on August 6, 2018. 39. Stacy Lynne is entitled to an order compelling the City of Fort Collins and Defendants Darin Atteberry, City Attorney Carrie Daggett, and Assistant City Attorney Christopher Van Hall to allow Stacy Lynne access to all responsive public records as requested on March 19, 2018. 40. Stacy Lynne is not an attorney and so attorney's fees are not an option. However, Stacy Lynne requests fees and costs incurred to enforce her right to access public records per C.R.S. 24-72-204(5). August 9, 2018 Page 13 of 16 Complaint and Application for Order to Show Cause APPLICATION FOR ORDER TO SHOW CAUSE 41. Per C.R.S. 24-72-204(5), Stacy Lynne is entitled to an Order to Show Cause that will compel the City of Fort Collins, City Manager Darin Atteberry, City Attorney Carrie Daggett, and Assistant City Attorney Christopher Van Hall to prove why Stacy Lynne is not allowed access to the requested public records and the unabridged privilege log. The privilege log was outlined in writing numerous times by Stacy Lynne. The privilege log is in accordance with District Court Judge Devin Odell's order to the Poudre School District to provide a privilege log that contains clear and detailed components (2011 CV 1118 John Doe and Jane Doe v. The Poudre School District). 42. Stacy Lynne's COMPLAINT and the GENERAL FACTS AND GROUNDS FOR MOTION TO SHOW CAUSE satisfies the "three-part test". "Three-part test to show that the Colorado Open Records Act (CORA) applies to a record. A plaintiff must show that a public entity: (1) improperly; (2) withheld; (3) a public record in order for CORA to apply. Wick Commc'ns Co. v. Montrose County Bd. of County Commis, 81 P.3d 360 (Colo. 2003)." August 9, 2018 Page 14 of 16 Complaint and Application for Order to Show Cause PRAYER FOR RELIEF WHEREFORE, Stacy Lynne requests that the Court: A. Enter an Order directing the City of Fort Collins et al to show cause why Stacy Lynne should not be allowed access to the public records described in the March 19, 2018 CORA request; B. Conduct a hearing pursuant to C.R.S. 24-72-204(5)(b); C. Enter an Order requiring the City of Fort Collins et al to allow Stacy Lynne access to all responsive public records in the City of Fort Collins et al possession, custody and control; D. Enter an Order requiring the City of Fort Collins et al to provide a privilege log that indexes all documents that the City claims are not "public records" under CORA, including without exception and to meet its burden under Wick Commc'ns: o An index listing the title of each document withheld, including: ■ the date of the document the identity of the author and its recipients a detailed and factual description of the document (without revealing the exempt material) the statutory exemption claimed for that item or category E. Award Stacy Lynne fees and costs associated with this action; F. And, for such other and further relief as to this Court appears proper. Respectfully filed on Thursday, August 9, 2018. � a CA' f" MnA_ Stacy LynO ' 305 West Magnolia Street #282 Fort Collins, Colorado 80521 970-402-1582 stacy lynne@comcast.net August 9, 2018 Page 15 of 16 Complaint and Application for Order to Show Cause CERTIFICATE OF SERVICE I certify that on Thursday, August 9, 2018, a true and accurate copy of the foregoing COMPLAINT AND APPLICATION FOR ORDER TO SHOW CAUSE, JDF 600 DISTRICT COURT CIVIL SUMMONS, and JDF 601 DISTRICT COURT CIVIL CASE COVER SHEET have been served by private process service to all parties: City of Fort Collins Darin Atteberry, City Manager Carrie Daggett, City Attorney Christopher Van Hall, Assistant City Attorney City Hall West 300 LaPorte Avenue Fort Collins, Colorado 80521 �t C -4� --� 1, 1 Stacy Lyn August 9, 2018 Page 16 of 16 Complaint and Application for Order to Show Cause March 19, 2018 Ms. Delynn Coldiron, City Clerk City of Fort Collins, City Hall West 300 LaPorte Avenue Fort Collins, Colorado 80521 Dear Ms. Coldiron, Exhibit 1 t�,c `� 3�1211� Hand -Delivered Pursuant to Colorado Open Records Act § 24-72-201 et seq, I request that you make available the following public records: 1. Any and all documents - including call logs and text messages -- between Noah Beals (Senior City Planner), and any and all other people as related in any and all ways to the sign code update If you are not the custodian of records for this request, please forward this letter to the appropriate person or let me know who has custody of those records. I request waiver of all fees for searching and copying these records in that the disclosure of this information is in the public interest and will contribute significantly to the public's understanding of the processes involved with a major revision to the sign code and the use of public money to achieve the City's goals ofapplying "aesthetic values" to private -sector business owners. This information is not being sought for commercial purposes. I f there are any fees for searching or copying these records, please inform me if the cost will exceed $25.00. Please set a date and hour, within three working days following receipt of this letter, at which time the records will be made available for inspection. If access to these records will take longer, please cite the extenuating circumstances and let me know when I should expect copies or the ability to inspect the records. I ask that the records available in electronic format be transmitted to: stacy_lynne@comcast.net. If you deny any portion, or all, of this request, please provide me with a written explanation of the reason(s) for your denial, including a citation to each specific statutory exemption you feel justifies the refusal to release the information and notify me of the appeal procedures under the law. Ifyou conclude that portions of the records that I request are exempt from disclosure, please release the remainder of such records for inspection and copying, redacting only the portion or portions that you claim are exempt. Please contact me with any questions about my request. Thank you I'or your time. S' cerely, Stacy ynn Investigative Journalist, stacy_lynne a comcast. net, 970-402-1582 Xfinity Connect Open Records Request regarding Sign Code correspondence Printout Page 1 of 1 Exhibit 2 Christine Macrina <cmacrina@fcgov.com> 3/22/2018 5:42 PM Open Records Request regarding Sign Code correspondence To Stacy_lynne@comcast.net <stacy_lynne@comcast.net> Copy Delynn Coldiron <decoldiron@fcgov.com> Rita Knoll <rknoll@fcgov.com> • Judy Schmidt <jschmidt@fcgov.com> • Carrie Daggett <cdaggett@fcgov.com> Noah Beals <nbeals@fcgov.com> • Cameron Gloss <cgloss@fcgov.com> • Tom Leeson <tleeson@fcgov.com> Laurie Kadrich <Ikadrich@fcgov.com> • Dawn Kennedy <dkennedy@fcgov.com> Good afternoon Stacy, Staff has been determining what it would take to respond to your open records request that was hand delivered on Monday. It will take approximately 12.5 hours to respond to this request. The first hour is free but a $30.00 charge will apply thereafter for a total of $345.00. If the estimate exceeds $50.00 we require payment prior to proceeding. I have attached the City of Fort Collins Open Records Policy for your review. Your request is very broad; if you narrowed the request I will provide a new estimate. Please let me know how you would like to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina cDfcgov.com "Tell us about our service. We want to know!" • 03.19.18 Hand Delivered CORA Sign Code Request.pdf (45 KB) • City of Fort Collins Open Record Request Policy.pdf (269 KB) https:Hconnect.xfinity.com/appsulte/v=7.8.4-27.20180621.065846/print.html?print_153369... 8/7/2018 Xfinity Connect Re_ Open Records Request regarding Sign Code correspondence Printout Page 1 of 1 STACY LYNNE <stacy_lyn ne@comcast. net> Exhibit 3 3/23/2018 7:54 AM Re: Open Records Request regarding Sign Code correspondence To Christine Macrina <cmacrina@fcgov.com> Copy Laurie Kadrich <Ikadrich@fcgov.com> Carrie Daggett <cdaggett@fcgov.com> • Dawn Kennedy <dkennedy@fcgov.com> • Rita Knoll <rknoll@fcgov.com> Noah Beals <nbeals@fcgov.com> • Judy Schmidt <jschmidt@fcgov.com> • Tom Leeson <tleeson@fcgov.com> Delynn Coldiron <decoldiron@fcgov.com> • Cameron Gloss <cgloss@fcgov.com> stacy lynne <stacy_lynne@comcast. net> Good Morning Christine, Let's narrow the search by applying the original request to the dates of January 1, 2018 through March 23, 2018. Please provide the estimated cost for that time -frame. Thank you! Stacy Lynne Investigative Journalist On March 22, 2018 at 5:40 PM Christine Macrina <cmacrina(a)fcgov.com> wrote: Good afternoon Stacy, Staff has been determining what it would take to respond to your open records request that was hand delivered on Monday. It will take approximately 12.5 hours to respond to this request. The first hour is free but a $30.00 charge will apply thereafter for a total of $345.00. If the estimate exceeds $50.00 we require payment prior to proceeding. I have attached the City of Fort Collins Open Records Policy for your review. Your request is very broad; if you narrowed the request I will provide a new estimate. Please let me know how you would like to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970416-2525 office cmacrina(cDfcgov.com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_l 53369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page 1 of 2 Christine Macrina <cmacrina@fcgov.cExhibit 4om> 3/23/2018 8:24 AM RE: Open Records Request regarding Sign Code correspondence To STACY LYNNE <stacy_lynne@comcast.net> Thank you Stacy, I will speak with staff and get back with you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrinana.fcgov.com "Tell us about our service. We want to know!" From: STACY LYNNE [mailto:stacy lynne@comcast.net) Sent: Friday, March 23, 2018 7:54 AM To: Christine Macrina <cmacrina@fcgov.com> Cc: Laurie Kadrich <Ikadrich @fcgov.com>; Carrie Daggett <CDAGGETT@fcgov.com>; Dawn Kennedy <dkennedy@fcgov.com>; Rita Knoll <RKNOLL@fcgov.com>; Noah Beals <nbeals@fcgov.com>; Judy Schmidt <ischmidt@fcgov.com>; Tom Leeson <tleeson@fcgov.com>; Delynn Coldiron <DECOLDIRON@fcgov.com>; Cameron Gloss <cgloss@fcgov.com>; stacy lynne <st_acy lynne@comcast.net> Subject: Re: Open Records Request regarding Sign Code correspondence Good Morning Christine, Let's narrow the search by applying the original request to the dates of January 1, 2018 through March 23, 2018. Please provide the estimated cost for that time -frame. Thank you! Stacy Lynne Investigative Journalist On March 22, 2018 at 5:40 PM Christine Macrina <cmacrina@fcgov.com> wrote: Good afternoon Stacy, Staff has been determining what it would take to respond to your open records request that was hand delivered on Monday. It will take approximately 12.5 hours to respond to this request. The first hour is free https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page 2 of 2 but a $30.00 charge will apply thereafter for a total of $345.00. If the estimate exceeds $50.00 we require payment prior to proceeding. I have attached the City of Fort Collins Open Records Policy for your review. Your request is very broad; if you narrowed the request I will provide a new estimate. Please let me know how you would like to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina(cilfcgov.com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_l 53369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page I of 2 Christine Macrina <cmacrina@fcgov.com> Exhibit 5 3/23/2018 1:30 PM RE: Open Records Request regarding Sign Code correspondence To STACY LYNNE <stacy_lynne@comcast.net> Copy Laurie Kadrich <Ikadrich@fcgov.com> Carrie Daggett <cdaggett@fcgov.com> • Dawn Kennedy <dkennedy@fcgov.com> • Rita Knoll <rknoll@fcgov.com> Noah Beals <nbeals@fcgov.com> • Judy Schmidt <jschmidt@fcgov.com> • Tom Leeson <tleeson@fcgov.com> Delynn Coldiron <decoldiron@fcgov.com> • Cameron Gloss <cgloss@fcgov.com> Christopher VanHall <cvanhall@fcgov.com> Good afternoon Stacey, Staff has provided a new estimate of 7 hours. The first hour is not charged $30.00 an hour for the remaining 6 hours brings the estimate to $180.00. Please let me know how you would like us to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina(a)fcgov.com "Tell us about our service. We want to know!" From: STACY LYNNE [mailto:stacy Iynne@comcast.net] Sent: Friday, March 23, 2018 7:54 AM To: Christine Macrina <cmacrina@fcgov.com> Cc: Laurie Kadrich <Ikadrich@fcgov.com>; Carrie Daggett <CDAGGETT@fcgov.com>; Dawn Kennedy <dkennedy@fcgov.com>; Rita Knoll <RKNOLL@fcgov.com>; Noah Beals <nbeals@fcgov.com>; Judy Schmidt <ischmidt@fcgov.com>; Tom Leeson <tleeson@fcgov.com>; Delynn Coldiron <DECOLDIRON@fcgov.com>; Cameron Gloss <cgloss@fcgov.com>; stacy Iynne <stacy Iynne@comcast.net> Subject: Re: Open Records Request regarding Sign Code correspondence Good Morning Christine, Let's narrow the search by applying the original request to the dates of January 1, 2018 through March 23, 2018. Please provide the estimated cost for that time -frame. Thank you! https://connect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.htmI?print_ 153369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page 2 of 2 Stacy Lynne Investigative Journalist On March 22, 2018 at 5:40 PM Christine Macrina <cmacrina@fcgov.com> wrote: Good afternoon Stacy, Staff has been determining what it would take to respond to your open records request that was hand delivered on Monday. It will take approximately 12.5 hours to respond to this request. The first hour is free but a $30.00 charge will apply thereafter for a total of $345.00. If the estimate exceeds $50.00 we require payment prior to proceeding. I have attached the City of Fort Collins Open Records Policy for your review. Your request is very broad; if you narrowed the request I will provide a new estimate. Please let me know how you would like to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina(cDfcaov.com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ l 53369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page 1 of 2 STACY LYNNE <stacy_lyn ne@com cast. net> Exhibit 6 3/26/2018 10:18 AM RE: Open Records Request regarding Sign Code correspondence To Christine Macrina <cmacrina@fcgov.com> Copy Laurie Kadrich <Ikadrich@fcgov.com> Carrie Daggett <cdaggett@fcgov.com> • Christopher VanHall <cvanhall@fcgov.com> Dawn Kennedy <dkennedy@fcgov.com> • Rita Knoll <rknoll@fcgov.com> • Noah Beals <nbeals@fcgov.com> Judy Schmidt <jschmidt@fcgov.com> • Tom Leeson <tleeson@fcgov.com> Delynn Coldiron <decoldiron@fcgov.com> • Cameron Gloss <cgloss@fcgov.com> stacy lynne <stacy_lynne@comcast.net> Good Morning Christine, Thank you for the updated estimate. I will bring the payment to the Clerk's office this week. I understand that the request will not be filled until you receive the $180.00 payment. Stacy Lynne Investigative Journalist On March 23, 2018 at 1:27 PM Christine Macrina <cmacrina@fcgov.com> wrote: Good afternoon Stacey, Staff has provided a new estimate of 7 hours. The first hour is not charged $30.00 an hour for the remaining 6 hours brings the estimate to $180.00. Please let me know how you would like us to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina[cDfcgov.com "Tell us about our service. We want to know!" From: STACY LYNNE [mailto:stacy Iynne(cilcomcast.netl Sent: Friday, March 23, 2018 7:54 AM To: Christine Macrina <cmacrina(cD-fcgov.com> Cc: Laurie Kadrich <Ikadrich@fcgov.com>; Carrie Daggett <CDAGGETT@fcgov.com>; Dawn Kennedy https://connect.xfinity.com/appsulte/v=7.8.4-27.20180621.065846/print.html?print 153369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page 2 of 2 <dkennedyna.fcgov.com>; Rita Knoll <RKNOLL(cDfcgov.com>; Noah Beals <nbeals fcgov.com>; Judy Schmidt <jschmidt(aDfcgov.com>; Tom Leeson <tleeson fcgov.com>; Delynn Coldiron <DECOLDIRON(cD.fcgov.com>; Cameron Gloss <cgloss(aDfcgov.com>; stacy lynne <stacv Ivnne@comcast.net> Subject: Re: Open Records Request regarding Sign Code correspondence Good Morning Christine, Let's narrow the search by applying the original request to the dates of January 1, 2018 through March 23, 2018. Please provide the estimated cost for that time -frame. Thank you! Stacy Lynne Investigative Journalist On March 22, 2018 at 5:40 PM Christine Macrina <cmacrina@fcgov.com> wrote: Good afternoon Stacy, Staff has been determining what it would take to respond to your open records request that was hand delivered on Monday. It will take approximately 12.5 hours to respond to this request. The first hour is free but a $30.00 charge will apply thereafter for a total of $345.00. If the estimate exceeds $50.00 we require payment prior to proceeding. I have attached the City of Fort Collins Open Records Policy for your review. Your request is very broad; if you narrowed the request I will provide a new estimate. Please let me know how you would like to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrinato7_fcgov. com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065 846/print.html?print_ l 53369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page I of 2 STACY LYNNE <stacy_lyn ne@comcast. net> Exhibit 7 4/15/2018 12:07 PM RE: Open Records Request regarding Sign Code correspondence To Christine Macrina <cmacrina@fcgov.com> Copy Laurie Kadrich <Ikadrich@fcgov.com> Carrie Daggett <cdaggett@fcgov.com> • Christopher VanHa►I <cvanhall@fcgov.com> Dawn Kennedy <dkennedy@fcgov.com> • Rita Knoll <rknoll@fcgov.com> • Noah Beals <nbeals@fcgov.com> Judy Schmidt <jschmidt@fcgov.com> • Tom Leeson <tleeson@fcgov.com> Delynn Coldiron <decoldiron@fcgov.com> • Cameron Gloss <cgloss@fcgov.com> Hello Christine, Apologies for the delay! I will deliver $200.00 cash to the Clerk's office on Monday, April 16, 2018. 1 would like to amend the request to include the dates of January 1, 2018 through April 16, 2018. 1 will provide any remaining balance due upon receipt of the record. As a reminder, please provide the request electronically to this email address. Thank you, Stacy On March 23, 2018 at 1:27 PM Christine Macrina <cmacrina anfcgov.com> wrote: Good afternoon Stacey, Staff has provided a new estimate of 7 hours. The first hour is not charged $30.00 an hour for the remaining 6 hours brings the estimate to $180.00. Please let me know how you would like us to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970416-2525 office cmacrina@fcgov.com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018 Xfinity Connect RE_ Open Records Request regarding Sign Code correspondence Printout Page 2 of 2 From: STACY LYNNE [mailto:stacv lynne .comcast.netl Sent: Friday, March 23, 2018 7:54 AM To: Christine Macrina <cmacrina aefcgov.com> Cc: Laurie Kadrich <Ikadrich cDfcgov.com>; Carrie Daggett <CDAGGETT(cD_fcgov.com>; Dawn Kennedy <dkennedy(ZDfcgov.com>; Rita Knoll <RKNOLL cDfcgov.com>; Noah Beals <nbeals(cDfcgov.com>; Judy Schmidt <Ischmidt(cDfcgov.com>; Tom Leeson <tleeson(a�fcgov.com>; Delynn Coldiron <DECOLDIRON(a)fcgov.com>; Cameron Gloss <cgloss(a)fcgov.com>; stacy lynne <stacv Iynne a comcast.net> Subject: Re: Open Records Request regarding Sign Code correspondence Good Morning Christine, Let's narrow the search by applying the original request to the dates of January 1, 2018 through March 23, 2018. Please provide the estimated cost for that time -frame. Thank you! Stacy Lynne Investigative Journalist On March 22, 2018 at 5:40 PM Christine Macrina <cmacrina@fcgov.com> wrote: Good afternoon Stacy, Staff has been determining what it would take to respond to your open records request that was hand delivered on Monday. It will take approximately 12.5 hours to respond to this request. The first hour is free but a $30.00 charge will apply thereafter for a total of $345.00. If the estimate exceeds $50.00 we require payment prior to proceeding. I have attached the City of Fort Collins Open Records Policy for your review. Your request is very broad; if you narrowed the request I will provide a new estimate. Please let me know how you would like to proceed. Thank you. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacri na(a)fcg ov. com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsulte/v=7.8.4-27.20180621.065846/print.htm I?print_ 153369... 8/7/2018 ^,�rtr ON April 18, 2018 Ms. Stacy Lynne Investigative Journalist 305 West Magnolia Street, #282 Fort Collins, CO 80521 Dear Ms. Lynne, Exhibit 8 City Clerk 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80522 970.221.6515 970.221-6295 - fax Icgov.doMcityclerk This letter and a flash drive containing records are provided in response to your open records request on Monday, April 16, 2018. There are records responsive to your request that will not be disclosed. The records are privileged, under the attorney -client privilege. Under the Colorado Open Records Act the City is not required to provide a log or state the contents of the emails we are withholding. Kind regards, Christine Macrina Boards and Commissions Coordinator Exhibit 9 April 20, 2018 Christopher William Van Hall Attorney Registration #50660 City of Fort Collins Attorney's Office 300 LaPorte Avenue Fort Collins, Colorado 80522 Dear Mr. Van Hall, Hand -Delivered to All Recipients RECEIVED APR 2 0 Z018 CITY A7T0PoVEy On Thursday April 19, 2018, I retrieved from the City Clerk's Office one USB drive containing multiple documents provided in answer to a Colorado Open Records Access request that was filed on April 16, 2018. In addition to that USB drive, I received a letter dated April 18, 2018 that was signed by Ms. Christine Macrina, Boards and Commissions Coordinator. Quoting from Ms. Macrina's letter: "There are records responsive to your request that will not be disclosed. The records are privileged, under the attorney -client privilege. " And, "Under the Colorado Open Records Act the City is not required to provide a log or state the contents of the emails we are withholding. " You and I agree that under Colorado law, the government is allowed to withhold information that is considered attorney -client privilege. However, there is a legal problem with your vague denial. In my original Colorado Open Records Act (CORA) request dated March 19, 2018, I included this paragraph that contained standard legal language as applied to CORA requests: "If you deny any portion, or all, of this request, please provide me with a written explanation of the reason(s) for your denial, including a citation to each specific statutory exemption you feel justifies the refusal to release the information and notify me of the appeal procedures under the law. If you conclude that portions of the records that 1 request are exempt from disclosure, please release the remainder of such records for inspection and copying, redacting only the portion or portions that you claim are exempt. " The reason that language is valuable in all CORA requests and specifically with denials based on attorney -client privilege is this: if the government denies a request citing privilege, but does not provide at least a log of the documents that were denied or at most the redacted items that are "privileged", then the legislative intent of the law has been subverted. Plainly, if I don't know what is missing, I don't know if it was withheld based on authentic legal grounds. Page 1 of 4 Why is the law subverted if a privilege log or redacted items are not provided? A similar and fascinating case that is on the record in this judicial district spells it out.... In 2011, Eighth Judicial District Court Judge Devin R. Odell clearly explains the issue in his FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER AND JUDGMENT in Case Number I 1 CV 1118 (John Doe and Jane Doe v. The Poudre School District). Judge Odell says this: "However, the District has withheld some of the documents it discovered under claims that they are privileged or constitute work product, and the Court grants the Does' request for an index of those documents as detailed below. " In Judge Odell's SPECIFIC FINDINGS OF FACT, CONCLUSIONS OF LAW AND ANALYSIS, he says this about the general CORA laws: "General CORA Law The General Assembly has declared that it is "the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as ... provided by law. " C.R.S. § 24-72-201 (2011). A `public record" is a writing "made, maintained, or kept by the state, any agency, institution, ... or political subdivision of the state ... for use in the exercise offunctions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. C.R.S. § 24-72-202(6)(a)(1); Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). "Writings " includes "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics ", as well as "digitally stored data, including without limitation electronic mail messages ...... C.R.S. § 24-72-202(7). CORA requires custodians ofpublic records to make them available to the public, subject to certain exceptions, including that the records are "privileged. " C.R.S. § 24-72-204(2), (3) & 23 (3)(a)(IV). Because CORA establishes "a strong presumption in favor of public disclosure, " exceptions must be construed narrowly. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154, 1156 (Colo. App. 1998). A records custodian must provide access to the requested documents within three working days (if documents are in active use or otherwise not immediately available), unless "extenuating circumstances" exist that permit the custodian to produce the documents within ten working days. C.R.S. § 24-72-203(3)(a)-(b). If the custodian denies access to any public record, the party requesting access to that record may request a written statement of the grounds for the denial, and such statement shall cite the law or regulation under which access is denied. Id. § 24-72- 204(4). Any person denied access to any public record may petition the district court for an order directing the custodian to show cause access to that record should not be permitted. Id. § 24-72-204(5). In an action under CORA, "to show that CORA applies, the plaintimust show that a public entity: (1) improperly; (2) withheld; (3) a public record. " Wick Commc'ns Co. v. Montrose Bd. of County Comm'rs, 81 P.3d 360, 362 (Colo. 2003 ") Page 2 of 4 But this is where Judge Odell gets specific: "The withholding of responsive records as privileged The Does request for a listing of the documents withheld by the District as privileged or work product is supported by the plain language of CORA: "If the custodian denies access to any public record, the applicant may request a written statement of the grounds for the denial, and such statement shall cite the law or regulation under which access is denied. " C.R.S. § 24- 72-204(4). The Court sees no reason, in an appropriate case, why it should not adopt the procedure adopted by the federal courts under FOIA as discussed above to enforce the plain language of this statutory provision. In this case, the Does have requested an index of documents withheld by the District to allow them to identify and challenge that decision. The District has responded that CORA only entitles the Does "to a statement of the law or regulation under which access is denied, and 40 nothing more. " The Court rejects this position, as it renders the statute meaningless. A "statement" not linked to some means of identifying the particular document being withheld, as proposed by the District, is useless because it cannot be challenged by a requester or reviewed by the Court. As one treatise stated, The indexing function serves three important policy roles. It forces the agency to evaluate carefully each page or document withheld. Also it enables the court to fulfill its duty to rule on the applicability of the exemption. Third, it gives the requester as much information as possible so that the requester can make a more useful presentation of argument. James T. O'Reilly, I Fed. Info. Discl. § 8:16; see also Alcon v. Spicer, 113 P.3d 735, 742 (Colo. 2005) (adopting privilege logs and federal procedure for discovery requests involving claims of privilege for medical records and discussing benefits of approach). The District also argues that the General Assembly's inclusion of a more detailed index provision with respect to records withheld under the common law or deliberative process privilege indicates that it did not intend to impose a similar requirement with respect to other exemptions under CORA. C.R.S. § 24-72- 204(3)(a)(XII). The Court finds this unconvincing. The two provisions are actually, as a practical matter, quite similar, with the primary differences being that the latter provision requires an entity to "specifically describ[e] each document withheld" and explain "why disclosure would cause substantial injury to the public interest. " Id. The first requirement, however, is implicit in the first provision, as discussed above, since a statement of privilege without any identification of the withheld documents would be meaningless. Rather, the statute appears to assume that all parties know the particular document at issue. The second requirement is plainly inapplicable in the context of other exemptions. 41 Therefore, in this case, the Court grants the Does' request for an index listing the title of each document withheld; the date of the document, the identity of the author and its recipients, and as detailed a factual description as possible without revealing the exempt material; and the statutory exemption claimed for that item or category. In addition, to the extent that District is withholding documents responsive to Request I and 2 because it contends that they are not "public records " under CORA, as discussed above, it must also include those documents in the index to carry forward its burden under Wick Commc'ns. " Page 3 of 4 In summary, the legislative intent and written laws regarding open records access is clear. Judge Devin Odell is explicitly coherent in his 2011 ANALYSIS in John Doe and Jane Doe v The Poudre School District. In order for the City of Fort Collins to comply with the legislative intent and the plain language as written in the Colorado Open Records Access laws and to satisfy the federal laws under the Freedom of Information Act, please provide: An index listing the title of each document withheld, including: a. the date of the document b. the identity of the author and its recipients c. a detailed and factual description of the document (without revealing the exempt material) d. the statutory exemption claimed for that item or category. 2. To the extent that the City is withholding documents because it contends that they are not "public records" under CORA, include those documents in the index to meet its burden under Wick Commc'ns. 3. I will expect this information within three days. Respectfully, Ack G Stacy Lynne Investigative Journalist stacy_lynne@comcast.net 970-402-1582 cc: City Manager Darin Atteberry, City Attorney Carrie Daggett, Mayor Wade Troxell, Mayor Pro Tern Gerry Horak, Councilor Kristen Stephens, Councilor Ken Summers, Councilor Bob Overbeck, Councilor Ross Cunniff, Councilor Ray Martinez, Ms. Christine Macrina — Boards and Commissions Coordinator Page 4 of 4 Xfinity Connect Letter Hand Delivered to the City Attorneys Office on April 20, 2018 P... Page 1 of I Christine Macrina <cmacrina@fcgov.com> Exhibit 10 4/25/2018 4:57 PM Letter Hand Delivered to the City Attorney's Office on April 20, 2018 To STACY LYNNE <stacy_lynne@comcast.net> Good afternoon Stacy, I have been contacted by the City Attorney's Office regarding the records withheld that are privileged, under attorney -client privilege. Your request to receive an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category. This information can be compiled and provided, the estimate is an additional 2.5 hours, which means $75.00. Should we proceed? Thanks. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300.LaPorte Avenue 970-416-2525 office cmacrina(o)fcgov.com "Tell us about our service. We want to know!" • Stacy Lynne letter - 4-20-18.pdf (288 KB) https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018 Xfinity Connect CLARIFICATION - Letter Hand Delivered to the City Attorneys Offic... Page 1 of 2 Exhibit 11 Christine Macrina <cmacrina@fcgov.com> 4/25/2018 5:22 PM CLARIFICATION - Letter Hand Delivered to the City Attorney's Office on April 20, 2018 To STACY LYNNE <stacy_lynne@comcast.net> Stacy, I worded the earlier email (below) in a way that could be misinterpreted. The City is not agreeing that it is required to provide all the information you are requesting under the Colorado Open Records Act, or that such disclosure is appropriate in these circumstances. The City is compiling a summary list of documents that provides a sufficient legal basis for withholding such documents under the attorney - client privilege. The estimated time is based on the time to produce this summary list. Please let me know how you would like me to proceed. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cm a cri n a Ca. fcg ov. co m "Tell us about our service. We want to know!" From: Christine Macrina Sent: Wednesday, April 25, 2018 4:57 PM To: STACY LYNNE Subject: Letter Hand Delivered to the City Attorney's Office on April 20, 2018 Good afternoon Stacy, I have been contacted by the City Attorney's Office regarding the records withheld that are privileged, under attorney -client privilege. Your request to receive an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category. This information can be compiled and provided, the estimate is an additional 2.5 hours, which means $75.00. Should we proceed? Thanks. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina(a.fcgov.com https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065 846/print.htm I?print_ 153369... 8/7/2018 Xfinity Connect CLARIFICATION - Letter Hand Delivered to the City Attorneys Offic... Page 2 of 2 "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ l 53369... 8/7/2018 Xfinity Connect Re_ Letter Hand Delivered to the City Attorney_s Office on April 20, 20... Page 1 of 1 Exhibit 12 STACY <stacy_lynne@com cast. net> 4/25/2018 5:26 PM Re: Letter Hand Delivered to the City Attorney's Office on April 20, 2018 To cmacrina@fcgov.com • stacy_lynne@comcast.net Hello Christine, Please proceed with the request. Does the $75.00 include a no -cost first hour? I will bring the cash payment tomorrow (April 26, 2018). Thank you, Stacy Lynne Investigative Jourmalist Sent from XFINITY Connect Mobile App -----Original Message ----- From: cmacrina &fcoov.com To: stacy Iynne(@comcast.net Cc: Sent: 2018-04-25 4:57:11 PM Subject: Letter Hand Delivered to the City Attorney's Office on April 20, 2018 Good afternoon Stacy, I have been contacted by the City Attorney's Office regarding the records withheld that are privileged, under attorney -client privilege. Your request to receive an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category. This information can be compiled and provided, the estimate is an additional 2.5 hours, which means $75.00. Should we proceed? Thanks. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina(cDfcgov.com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsulte/v=7.8.4-27.20180621.065846/print.html?print_ l 53369... 8/7/2018 Xfinity Connect Re_ CLARIFICATION - Letter Hand Delivered to the City Attorney_s ... Page 1 of 2 Exhibit 13 STACY <stacy_lynne@com cast. net> 4/25/2018 8:10 PM Re: CLARIFICATION - Letter Hand Delivered to the City Attorney's Office on April 20, 2018 To cmacrina@fcgov.com - stacy_lynne@comcast.net Hi Christine, I sent my reply before I saw your second email. I am still unclear about what you mean here. Please wait on this request until I can clarify the City's intent with this request. Thank you, Stacy Lynne Investigative Journalist Sent from XFINITY Connect Mobile App -----Original Message ----- From: cmacrina(a)fcaov.com To: stacy Iynne@comcast.net Cc: Sent: 2018-04-25 5:22:58 PM Subject: CLARIFICATION - Letter Hand Delivered to the City Attorney's Office on April 20, 2018 Stacy, I worded the earlier email (below) in a way that could be misinterpreted. The City is not agreeing that it is required to provide all the information you are requesting under the Colorado Open Records Act, or that such disclosure is appropriate in these circumstances. The City is compiling a summary list of documents that provides a sufficient legal basis for withholding such documents under the attorney - client privilege. The estimated time is based on the time to produce this summary list. Please let me know how you would like me to proceed. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina(a)fcgov.com "Tell us about our service. We want to know!" From: Christine Macrina Sent: Wednesday, April 25, 2018 4:57 PM https://connect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018 Xfinity Connect Re_ CLARIFICATION - Letter Hand Delivered to the City Attorneys... Page 2 of 2 To: STACY LYNNE Subject: Letter Hand Delivered to the City Attorney's Office on April 20, 2018 Good afternoon Stacy, I have been contacted by the City Attorney's Office regarding the records withheld that are privileged, under attorney -client privilege. Your request to receive an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category. This information can be compiled and provided, the estimate is an additional 2.5 hours, which means $75.00. Should we proceed? Thanks. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrina@fcqov.com "Tell us about our service. We want to know!" https:Hconnect.xfinity.com/appsulte/v=7.8.4-27.20180621.065846/print.html?print_ l 53369... 8/7/2018 Xfinity Connect City Response to S Lynne letter dated July 24, 2018 Printout Page 1 of 1 Exhibit 14 Mary Donaldson <mdonaldson@fcgov.com> 8/1/2018 10:04 AM City Response to S Lynne letter dated July 24, 2018 To Stacy_Lynne@comcast.net <stacy_lynne@comcast.net> Dear Ms. Lynne, Attached is a letter from City Attorney Carrie Daggett in response to your July 24, 2018 letter to the City of Fort Collins. Sincerely, ✓ twt* 29onaMoara ............... Mary Donaldson Executive Legal Administrative Assistant City of Fort Collins 300 Laporte Avenue P.O. Box 580 Fort Collins, CO 80522 -0580 970-416-2498 office 970-221-6520 main mdonaldson(a)fcgov.com City of �Collins Malcolm Baldrig ♦.h.—, 0-1 1- N. se 2017 Aw+rd RC<<p:rM • 2018_08_01 Letter to S Lynne.pdf (997 KB) • image001.png (34 KB) https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.064055/print.html?print_ l 53374... 8/8/2018 Exhibit 15 City of ,,,,,F6rt Collins August 1, 2018 Stacy Lynne 305 West Magnolia Street #282 Fort Collins, Colorado 80521 Via email: stac�_I City Attorney 300 :.a PCf gip. ?O o":x 53v c^_r: c.',.;!:.>. CO c ;-2 970.221.5520 970.22 „0 ,127 - tax xgo•v. c orn In Re: Letter from Ms. Lynne dated July 24, 2018 titled "NOTICE OF INTENT TO FILE FOR AN ORDER TO SHOW CAUSE PURUSANT TO COLORADO REVISED STATUTES (C.R.S.) 24-72-204(5)(A) COLORA.DO OPEN RECORDS ACT (CORA) Dear Ms. Lynne: I am in receipt of your July 24, 2018 letter. My understanding is that you received all the records related to your March 19, 2018 open records request, except for certain emails that the City withheld under the attorney -client privilege that is recognized pursuant to C.R.S. 24-72- 204(3)(a)(IV). Your letter claims that you never received a response to your April 20, 2018 letter requesting a privilege log for any emails that were withheld under the attorney -client privilege. On April 25, 2018, five days after your letter requesting a privilege log, you were contacted by Christine Macrina, Board and Commissions Coordinator, for the City regarding how to proceed in obtaining the privilege log. My understanding is that you ultimately decided not to pay the costs associated with creating the privilege log..1 followed up with an email on May 8, 2018 to let you know that my office would not be providing any additional response to your request. These emails, attached hereto as Exhibit A, show that you have received multiple responses to your April 201h letter. The City is still ready and willing to prepare a privilege log that has the following information about the withheld emails: Attorney that is sending or receiving the email. The month that the email was sent. Letter to Stacy Lynne In Re: Ms. Lynne's July 24, 2018 letter August 1, 2018 Page 2 of 2 Statement that the email was for the purpose of furnishing or obtaining professional legal advice or assistance related to the sign code revisions. If you would like the City to prepare and produce such a privilege log, please coordinate payment of the $75.00, associated with the costs of preparing the privilege log, with Ms. Macrina. Sin ely, Carrie Daggett City Attorney Copy: Darin Atteberry, City Manager Delyn Coldiron, City Clerk Christine Macrina, Board and Commissions Coordinator From: Christine Marring To: STACY LYNNE Subject letter Hand Delvered to the City Attomey"s Office on Aprll 20, 2018 Data: Wednesday, April 25, 2018 4:57:11 PM Attachment's: Stacy Lynne letter - 4-20-18 oar Good afternoon Stacy, I have been contacted by the City Attorney's Office regarding the records withheld that are privileged, under attorney -client privilege. Your request to receive an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category. This information can be compiled and provided, the estimate is an additional 2.5 hours, which means $75.00. Should we proceed? Thanks. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office Cmacrina fcoov.c= . MIR• • . • . Prom: Christine Macrina To: STACY LYNNE Subject: CLARIFICATION . Letter Hand Delivered to the City Attorneys Office on April 20, 2018 Date: Wednesday, April 25, 2018 5:20:57 PM Stacy, I worded the earlier email (below) in a way that could be misinterpreted. The City is not agreeing that it is required to provide all the information you are requesting under the Colorado Open Records Act, or that such disclosure is appropriate in these circumstances. The City is compiling a summary list of documents that provides a sufficient legal basis for withholding such documents under the attomey-client privilege. The estimated time is based on the time to produce this summary list. Please let me know how you would like me to proceed. CHRISTINE MACRINA Boards and Commissions Coordinator City of fort Collins 300 LaPorte Avenue 970-416-2525 office •• • From: Christine Macrina Sent: Wednesday, April 25, 2018 4:57 PM To:'STACY LYNNE' <stacy_lynne@comcast.net> Subject: Letter Hand Delivered to the City Attorney's Office on April 20, 2018 Good afternoon Stacy, I have been contacted by the City Attorney's Office regarding the records withheld that are privileged, under attorney -client privilege. Your request to receive an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category. This information can be compiled and provided, the estimate is an additional 2.5 hours, which means $75.00. Should we proceed? Thanks. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacdna@fcgov.com ... •] I I - , -1 a WTI e Exhibit 16 Christopher VanHall From: Carrie Daggett Sent: Tuesday, May 08, 2018 3:46 PM To: stacy Cc: Sarah Kane; Alison Aristoff; Evangeline Ramirez; CCSL; Christine Macrina; Christopher VanHall Subject: FW: Message from Fort Collins City Councilmember Ray Martinez Hello Ms. Lynne, This is to let you know that the City Attorney's Office won't be providing a response to you regarding your April 20 open records request independent of the response that has been provided by City staff. Christine Macrina in the City Clerk's Office has been handling that response, with the assistance of City staff. It's my understanding that you met with her on April 26, and at that time you suspended your request as you considered whether you wanted a summary of privileged documents withheld in light of the cost of producing the summary. Please contact Christine to discuss your request, if you would like staff to take further action on it. --came Carrie M. Daggett City Attorney Citv of Fort Collins 300 Laporte Avenue 970-221-6520 cdaacrettAfcgo v. corn of Fort Collins Malcolm Baldrige n', r:erd V01 i Award Recipient From: STACY LYNNE [mailto:stacy lynne comcast.net] Sent: Thursday, May 3, 2018 12:30 PM To: Alison Aristoff <AAristoff@fcgov.com>; stacy lynne <stacy lynne@comcast.net> Cc: Sarah Kane <SKane@fcgov.com>; Evangeline Ramirez <eramirez fcgov.com> Subject: Re: Message from Fort Collins City Councilmember Ray Martinez Hello Alison, Thank you for the follow-up. I look forward to hearing from the City Attorney's Office. Stacy Lynne Investigative Journalist On May 3, 2018 at 10:25 AM Alison Aristoff <AAristoff@fCgov.corn> wrote: Hi Stacy, On behalf of Councilmember Ray Martinez, I wanted to acknowledge receipt of your letter dated 4/20/18. Ray has referred your letter onto the City Attorney's Office for further review and response. Thank you for reaching out to Fort Collins City Council. Best, Alison Aristoff Temporary Administrative Support City of For ': it 970-221-6266 office aaristoff.afcaov co,m City of ( t Fort Collins In. otm BaldriKc lm G�+ July 24, 2018 Exhibit 17 Hand -Delivered to all Recipients via Civil Process Server Carrie Daggett, City Attorney Darin Atteberry, City Manager Delyn Coldiron, City Clerk Christine Macrina, Boards and Commissions Coordinator 300 LaPorte Avenue City Hall West Fort Collins, Colorado 80521 NOTICE OF INTENT TO FILE FOR AN ORDER TO SHOW CAUSE PURSUANT TO COLORADO REVISED STATUTES (C.R.S.) 24-72-204(5)(a) COLORADO OPEN RECORDS ACT (CORA) Dear Ms. Daggett, Mr. Atteberry, Ms. Coldiron, and Ms. Macrina: This letter serves as the notice requirement in C.R.S. 24-72-204(5)(a): "at least fourteen days prior to filing an application with the district court, the person who has been denied the right to inspect the record shall file a written notice with the custodian who has denied the right to inspect the record informing the custodian that the person intends to file an application with the district court." BACKGROUND/REVIEW January 2018 As follow-up to a 2015 interest in the process related to a smoking ban in downtown Fort Collins, in 2018 I began an in-depth investigation into the no smoking ordinance. My 2015 curiosity about the smoking ban was re -ignited by the stories people were telling about being arrested and taken to jail for smoking in public. The January 2018 no smoking ordinance investigation included open records access requests from the municipal court, interviews with downtown business owners and employees, and an interview with a lieutenant currently employed at Fort Collins Police Services. It was during the research of the smoking ordinance on the City's website that I noticed a reference to the sign code update in a city council agenda item summary. February 1 and February 7, 2018 Sign code update public meetings were held at the Museum of Discovery and the Drake Centre. 1 attended the public meetings because of potential overlap with the no smoking ordinance, and because the City claimed it was concerned about privately -owned business sign "aesthetics" in downtown Fort Collins. The aesthetic concern posited by the City is antithetical to hundreds of smoking ban signs that the City has mounted in the same downtown zone where it Notice of Intent to File Page 1 of 7 July 24, 2018 has "concerns" about hundreds of business signs. Notably: all of the business signs that were exploited as examples of "concerns" are in compliance with the City's sign code, even though Noah Beals (Senior City Planner) and Jeremy Call (hired consultant/contractor from Logan Simpson Design Inc.) used photos of those private businesses to show the public what the City and the consultant are "reconsidering". The public meetings were sparsely attended. Stakeholders were noticeably absent. The changes that Noah Beals and Jeremy Call presented were substantial. The few people who attended both public meetings were given voting devices, shown pictures of local business signs from the downtown zone, and then the attendees (sign companies, real estate agents, former city board/commission members, and the like) were told to vote on the changes to the privately - owned signs. Due to the extraordinary exclusion of business owners, building owners, landlords and tenants, and community members — all of whom will be directly impacted by sign code changes — I changed my focus from the smoking ban ordinance to the sign code update. I walked door to door to talk with business owners about their thoughts regarding the sign code update. The business owners en masse did not know about the public meetings; and, they were unaware of the depth and breadth of the "concerns" that Noah Beals and Jeremy Call were "reconsidering". The information that I provided to the business owners during our conversations about the process was strictly limited to materials that were disseminated by Noah Beals and Jeremy Call. The same materials were also posted on Facebook @Focus Fort Collins. March 19, 2018 I filed an open records access request with Ms. Delynn Coldiron, City Clerk for "Any and all documents — including call logs and text messages — between Noah Beals (Senior City Planner), and any and all other people as related in any and all ways to the sign code update". Refining the records request to narrow the time -frame and to reduce costs, in addition to other extraneous and mutual issues, delayed the receipt of the records. And so, a month elapsed between the original request and the result on April 20, 2018. Because the delays were mutual, there is no claim here that the City violated the CORA time requirements. April 20, 2018 I hand -delivered a letter to Christopher William Van Hall at the City of Fort Collins Attorney's Office. Mr. Van Hall was the name provided by Ms. Macrina when I asked for the name of the appropriate person to pursue fulfillment of the record request. The letter to Mr. Van Hall provides a succinct summary for the purpose of this written notice and it is copied here in the original form: Notice of Intent to File Page 2 of 7 July 24, 2018 April 20, 2018 Christopher William Van Hall Attorney Registration #50660 City of Fort Collins Attorney's Office 300 LaPorte Avenue Fort Collins, Colorado 80522 Dear Mr. Van Hall, Hand -Delivered to All Recipients On Thursday April 19, 2018, 1 retrieved from the City Clerk's Office one USB drive containing multiple documents provided in answer to a Colorado Open Records Access request that was filed on April 16, 2018. In addition to that USB drive, I received a letter dated April 18, 2018 that was signed by Ms. Christine Macrina, Boards and Commissions Coordinator. Quoting from Ms. Macrina's letter: "There are records responsive to your request that will not be disclosed. The records are privileged, under the attorney -client privilege. " And, "Under the Colorado Open Records Act the City is not required to provide a log or state the contents of the emails we are withholding. " You and I agree that under Colorado law, the government is allowed to withhold information that is considered attorney -client privilege. However, there is a legal problem with your vague denial. In my original Colorado Open Records Act (CORA) request dated March 19, 2018, 1 included this paragraph that contained standard legal language as applied to CORA requests: "If you deny any portion, or all, of this request, please provide me with a written explanation of the reasons) for your denial, including a citation to each specific statutory exemption you feel justifies the refusal to release the information and notify me of the appeal procedures under the law. If you conclude that portions of the records that 1 request are exempt from disclosure, please release the remainder of such records for inspection and copying, redacting only the portion or portions that you claim are exempt. " The reason that language is valuable in all CORA requests and specifically with denials based on attorney -client privilege is this: if the government denies a request citing privilege, but does not provide at least a log of the documents that were denied or at most Notice of Intent to File Page 3 of 7 July 24, 2018 the redacted items that are "privileged", then the legislative intent of the law has been subverted. Plainly, if I don't know what is missing, I don't know if it was withheld based on authentic legal grounds. Why is the law subverted if a privilege log or redacted items are not provided? A similar and fascinating case that is on the record in this judicial district spells it out.... In 2011, Eighth Judicial District Court Judge Devin R. Odell clearly explains the issue in his FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER AND JUDGMENT in Case Number 1 1 CV 1 1 18 (John Doe and Jane Doe v. The Poudre School District). Judge Odell says this: "However, the District has withheld some of the documents it discovered under claims that they are privileged or constitute work product, and the Court grants the Does' request for an index of those documents as detailed below. " In Judge Odell's SPECIFIC FINDINGS OF FACT, CONCLUSIONS OF LAW AND ANALYSIS, he says this about the general CORA laws: "General CORA Law The General Assembly has declared that it is "the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as ... provided by law. " C.R.S. § 24-72-201 (2011). A "public record" is a writing "made, maintained, or kept by the state, any agency, institution, ... or political subdivision of the state ... for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. C.R.S. § 24-72-202(6)(a)(1); Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). "Writings " includes "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics ", as well as "digitally stored data, including without limitation electronic mail messages ...... C.R.S. § 24-72-202(7). CORA requires custodians of public records to make them available to the public, subject to certain exceptions, including that the records are "privileged " C.R.S. § 24-72-204(2), (3) & 23 (3)(a)(I17). Because CORA establishes "a strong presumption in favor of public disclosure, " exceptions must be construed narrowly. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154, 1156 (Colo. App. 1998). A records custodian must provide access to the requested documents within three working days (if documents are in active use or otherwise not immediately available), unless "extenuating circumstances " exist that permit the custodian to produce the documents within ten working days. C.R.S. § 24-72-203(3)(a)-(b). If the custodian denies access to any public record, the party requesting access to that record may request a written statement of the grounds for the denial, and such statement shall cite the law or regulation under which access is denied. Id. § 24-72-204(4). Any person denied access to any public record may petition the district court for an order directing the custodian to show cause access to that record should not be permitted. Id. § 24-72-204(5). In an action under CORA, "to show that CORA applies, the plaintiff must show that a public entity: (1) improperly; (2) withheld; (3) a public record. " Wick Commc'ns Co. v. Montrose Bd. of County Comm 'rs, 81 P.3d 360, 362 (Colo. 2003 ' ) Notice of Intent to File Page 4 of 7 July 24, 2018 But this is where Judge Odell gets specific: "The withholding of responsive records as privileged The Does request for a listing of the documents withheld by the District as privileged or work product is supported by the plain language of CORA: "If the custodian denies access to any public record, the applicant may request a written statement of the grounds for the denial, and such statement shall cite the law or regulation under which access is denied. " C.R.S. § 24- 72- 204(4). The Court sees no reason, in an appropriate case, why it should not adopt the procedure adopted by the federal courts under FOIA as discussed above to enforce the plain language of this statutory provision. In this case, the Does have requested an index of documents withheld by the District to allow them to identify and challenge that decision. The District has responded that CORA only entitles the Does "to a statement of the law or regulation under which access is denied, and 40 nothing more. " The Court rejects this position, as it renders the statute meaningless. A "statement " not linked to some means of identifying the particular document being withheld, as proposed by the District, is useless because it cannot be challenged by a requester or reviewed by the Court. As one treatise stated, The indexing function serves three important policy roles. It forces the agency to evaluate carefully each page or document withheld. Also it enables the court to fulfill its duty to rule on the applicability of the exemption. Third, it gives the requester as march information as possible so that the requester can make a more useful presentation of argument. James T. O'Reilly, I Fed. Info. Discl. § 8:16; see also AIcon v. Spicer, 113 P.3d 735, 742 (Colo. 2005) (adopting privilege logs and federal procedure for discovery requests involving claims of privilege for medical records and discussing benefits of approach). The District also argues that the General Assembly's inclusion of a more detailed index provision with respect to records withheld under the common law or deliberative process privilege indicates that it did not intend to impose a similar requirement with respect to other exemptions under CORA. C.R.S. § 24-72- 204(3)(a)(XII). The Court finds this unconvincing. The two provisions are actually, as a practical matter, quite similar, with the primary differences being that the latter provision requires an entity to "specifically describlej each document withheld" and explain "why disclosure would cause substantial injury to the public interest. " Id. The first requirement, however, is implicit in the first provision, as discussed above, since a statement of privilege without any identification of the withheld documents would be meaningless. Rather, the statute appears to assume that all parties know the particular document at issue. The second requirement is plainly inapplicable in the context of other exemptions. 41 Therefore, in this case, the Court grants the Does ' request for an index listing the title of each document withheld; the date of the document, the identity of the author and its recipients, and as detailed a factual description as possible without revealing the exempt material; and the statutory exemption claimed for that item or category. In addition, to the extent that District is withholding documents responsive to Request I and 2 because it contends that they are not "public records " under CORA, as discussed above, it must also include those documents in the index to carry forward its burden under Wick Commc 'ns. " Notice of Intent to File Page 5 of 7 July 24, 2018 In summary, the legislative intent and written laws regarding open records access is clear. Judge Devin Odell is explicitly coherent in his 2011 ANALYSIS in John Doe and Jane Doe v. The Poudre School District. In order for the City of Fort Collins to comply with the legislative intent and the plain language as written in the Colorado Open Records Access laws and to satisfy the federal laws under the Freedom of Information Act, please provide: An index listing the title of each document withheld, including: a. the date of the document b. the identity of the author and its recipients c. a detailed and factual description of the document (without revealing the exempt material) d. the statutory exemption claimed for that item or category. 2. To the extent that the City is withholding documents because it contends that they are not "public records" under CORA, include those documents in the index to meet its burden under Wick Commc 'ns. 3. 1 will expect this information within three days. Respectfully, Stacy Lynne Investigative Journalist stacy_lynne@comcast.net 970-402-1582 cc: City Manager Darin Atteberry, City Attorney Carrie Daggett, Mayor Wade Troxell, Mayor Pro Tern Gerry Horak, Councilor Kristen Stephens, Councilor Ken Summers, Councilor Bob Overbeck, Councilor Ross Cunniff, Councilor Ray Martinez, Ms. Christine Macrina — Boards and Commissions Coordinator Notice of Intent to File Page 6 of 7 July 24, 2018 Mr. Van Nall and the City of Fort Collins did not respond to the letter dated April 20, 2018. Therefore, per C.R.S. 24-72-204(5)(a), "the custodian who has denied the right to inspect the record shall either meet in person or communicate on the telephone with the person who has been denied access to the record to determine if the dispute may be resolved without filing an application with the district court." I look forward to hearing from you so that we can complete a meeting or phone conference within 14 days as required by statute. Respectfully, Stacy Lynne Investigative Journalist Mailing Address: 305 West Magnolia Street #282 Fort Collins, Colorado 80521 970-402-1582 stacy_iynne@comcast.net Notice of Intent to File Page 7 of 7 July 24, 2018 Xfinity Connect Re_ City Response to S Lynne letter dated July 24, 2018 Printout Page 1 of 3 Exhibit 18 STACY LYNNE <stacy_lynne@comcast.net> 8/6/2018 12:10 PM Re: City Response to S Lynne letter dated July 24, 2018 To Carrie Daggett <cdaggett@fcgov.com> Copy stacy lynne <stacy_lynne@comcast.net> • datteberry@fcgov.com Delynn Coldiron <decoldiron@fcgov.com> • Christine Macrina <cmacrina@fcgov com> • mdonaldson@fcgov.com August 6, 2018 Dear Ms. Daggett, RE: Your letter dated August 1, 2018, in response to "NOTICE OF INTENT TO FILE FOR AN ORDER..." You say in your letter dated August 1, 2018, "Your letter claims that you never received a response to your April 20, 2018 letter..." Mr. Van Hall did not respond to the letter dated April 20, 2018 that was addressed to him. The letter was addressed to Mr. Van Hall because Ms. Macrina, a "Boards and Commissions Coordinator" gave me his name as the appropriate person to handle this particular CORA request. At that time, I asked Ms. Macrina why she, as a "Boards and Commissions Coordinator" was handling a CORA request. As you know, an important aspect of the CORA statute deals with who is the appropriate records custodian. Nevertheless, Ms. Macrina sent an email on April 25, 2018 at 4:57 PM stating that the City would fulfill the CORA request as outlined in my letter to Mr. Van Hall. But then, 23 minutes after Ms Macrina wrote that the privilege log would include -- as I specifically requested... "an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category" she wrote at 5:20 PM that "The City is not agreeing that it is required to provide all the information you are requesting under the Colorado Open Records Act, or that such disclosure is appropriate in these circumstances. " Notably, you omitted this important portion of the email thread from your August 1, 2018 exhibit: STACY <stacy Iynne(cDcomcast.net> 4/25/2018 8:10 PM Re: CLARIFICATION - Letter Hand Delivered to the City Attorney's Office on April 20, 2018 To cmacrina0fcaov.com • stacv lynneAcomcast.net Hi Christine, I sent my reply before I saw your second email. I am still unclear about what you mean here. Please wait on this request until I can clarify the Ci:y's intent with this request. Thank you, Stacy Lynne Investigative Journalist https://connect.xfinity.com/appsulte/v=7.8.4-27.20180621.064055/print.htm I?print_ 153374... 8/8/2018 Xfinity Connect Re_ City Response to S Lynne letter dated July 24, 2018 Printout Page 2 of 3 Sent from XFINITY Connect Mobile App -----Original Message ----- From: cmacrina@fcgov.com To: stacy lynne@comcast.net Cc: Sent: 2018-04-25 5:22:58 PM Subject: CLARIFICATION - Letter Hand Delivered to the City Attorney's Office on April 20, 2018 Stacy, I worded the earlier email (below) in a way that could be misinterpreted. The City is not agreeing that it is required to provide all the information you are requesting under the Colorado Open Records Act, or that such disclosure is appropriate in these circumstances. The City is compiling a summary list of documents that provides a sufficient legal basis for withholding such documents under the attorney - client privilege. The estimated time is based on the time to produce this summary list. Please let me know how you would like me to proceed. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacrinaAfc-gov.com "Tell us about our service. We want to know!" From: Christine Macrina Sent: Wednesday, April 25, 2018 4:57 PM To: STACY LYNNE Subject: Letter Hand Delivered to the City Attorney's Office on April 20, 2018 Good afternoon Stacy, I have been contacted by the City Attorney's Office regarding the records withheld that are privileged, under attorney -client privilege. Your request to receive an index listing the title of each document including date, identity of author and it's recipients, a detailed and factual description of the document (without revealing the exempt material), and the statutory exemption claimed for that item or category. This information can be compiled and provided, the estimate is an additional 2.5 hours, which means $75.00. Should we proceed? Thanks. CHRISTINE MACRINA Boards and Commissions Coordinator City of Fort Collins 300 LaPorte Avenue 970-416-2525 office cmacdnaAfcaov.com "Tell us about our service. We want to know!" As you can see in the email dated April 25, 2018, at 8:10 PM, I said to Ms. Macrina: "I am still unclear about what you mean here." The reason for being unclear? Because first Ms. Macrina specifically said that the City would be fulfilling the request as specifically cited in the April 20, 2018 letter to Mr. Van Hall, and then after I told her to proceed with the request, she emailed again and said that the City would not fulfill the request. Because the April 25, 2018 email thread contained conflicting information, I met in person with Ms. Macrina on April 26, 2018 to clear up exactly what the City would be providing. You say in an email dated May 8, 2018 that I was hesitant to continue the request "in light of the cost of producing the summary". The reason I balked at the cost was due to the insufficient fulfillment of the CORA request, not because of the additional cost https://connect.xfinity.com/appsuite/v=7.8.4-27.20180621.064055/print.htm I?print_ 153374... 8/8/2018 Xfinity Connect Re_ City Response to S Lynne letter dated July 24, 2018 Printout Page 3 of 3 involved. Explicitly: why would anyone pay for a statutorily insufficient CORA request? We can prove this is the way the conversation proceeded if we need to in the future. And although this paragraph seems irrelevant to the issue, I address it here in the interest of accuracy. So, we are back to where we started. The City of Fort Collins is making a typically linear process (CORA laws) into a vicious circle (he -said she -said filled with misleading diversions). You said in an email dated May 8, 2018, that "the City Attorney's Office won't be providing a response to you regarding your April 20, 2018 open records request". Why did the City Attorney's Office say that, especially in light of the fact that Ms. Macrina provided Mr. Van Hall's name as the appropriate contact person? And, if the withheld documents are actually attorney -client privileged, then it is obviously legally appropriate for the City Attorney's Office to take control of this CORA request. It seems illogical and unfair to put this burden on Ms. Macrina, a "Boards and Commissions Coordinator". Colorado Revised Statutes (C.R.S.) 24-72-204(5)(a) says: "the custodian who has denied the right to inspect the record shall either meet in person or communicate on the telephone with the person who has been denied access to the record to determine if the dispute may be resolved without filing an application with the district court." The open records statute says that NOTICE must be given 14 days prior to filing the application with the District Court. The City has not attempted to "meet in person or communicate on the telephone" per statutory language. The NOTICE was filed 14 days ago. Will the City of Fort Collins, within three (3) days, provide these documents (as outlined in the April 20, 2018 letter to City Attorney Christopher Van Hall)? 1. An index listing the title of each document withheld, including: 1. the date of the document 2. the identity of the author and its recipients 3. a detailed and factual description of the document (without revealing the exempt material) 4. the statutory exemption claimed for that item or category. 2. To the extent that the City is withholding documents because it contends that they are not "public records" under CORA, include those documents in the index to meet its burden under Wick Commc'ns. 3. 1 will expect this information within three days. Sincerely, Stacy Lynne Investigative Journalist https://connect.xfin ity.corn/appsuite/v=7.8.4-27.20180621.064055/print.html?print_ 153374... 8/8/2018 Xfinity Connect CORA Request Printout Page I of 1 Tom Leeson <tleeson@fcgov.com> Exhibit 19 8/6/2018 3:23 PM CORA Request To stacy_lynne@comcast.net <stacy_lyn ne@comcast. net> Copy Ryan Malarky <rmalarky@fcgov.com> Judy Schmidt <jschmidt@fcgov.com> • Christopher VanHall <cvanhall@fcgov.com> Stacy — I left a voicemail message for you and requested you return my call today at 3:10. The City received your Notice of Intent to File for an Order of Show Cause on July 24, 2018. In that Notice, you requested a meeting or phone conference pursuant to CORA and stated you intend to file a lawsuit in the district court challenging the City's response to your CORA request. I'm calling to confer with you pursuant to CORA. CORA requires me, as the records custodian, and you, as the requesting party, to confer to determine if this dispute may be resolved without filing an application with the district court. The deadline for us to confer is tomorrow, so if you could return my call at 970.221.6287, 1 would appreciate it. Thank you. Tom Leeson, AICP Community Development and Neighborhood Services Director City of Fort Collins 970.221.6287 (0) 970.846.2133 (C) tleeson@fcgov.com 1 fb Trout • image001.png (584 Byte) https://connect.xfinity.com/appsuite/v=7.8.4-27.20180621.065 846/print.htmI?print_ 153369... 8/7/2018 Xfinity Connect CORA Request Printout Page 1 of 1 Exhibit 20 Tom Leeson <tleeson@fcgov.com> 8/6/2018 4:01 PM CORA Request To stacy_lynne@comcast.net <stacy_lynne@comcast.net> Copy Ryan Malarky <rmalarky@fcgov.com> Judy Schmidt <jschmidt@fcgov.com> • Christopher VanHall <cvanhall@fcgov.com> Stacy — thank you for returning my call today so that we could confer to determine if this dispute may be resolved without filing an application with the district court. It is my understanding from the call that feel the City is not meeting the CORA requirements by not providing you all the records you originally requested. You also feel that I, as CDNS Director, am not the records custodian, so the City is not meeting the CORA requirements by me calling on behalf of the City. I confirmed that the City remains willing to provide a privilege log in the format previously offered if you pay to the City $75.00 for the costs of preparing the log. You believe the privilege log in the format previously offered is not meeting the CORA requirements, and therefore, we are at an impasse. I hope this adequately summarizes our conversation. Cheers, Tom Leeson, AICP Community Development and Neighborhood Services Director City of Fort Collins 970.221.6287 (0) 970.846.2133 (C) deeson(Wcgov.com ��a cN • image001.png (584 Byte) https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065 846/print.html?print_ l 53369... 8/7/2018 Xfinity Connect Re_ CORA Request Printout Page 1 of 2 Exhibit 21 STACY LYNNE <stacy_lyn ne@com cast. net> Re: CORA Request 8/7/2018 11:55 AM To Tom Leeson <tleeson@fcgov.com> • Carrie Daggett <cdaggett@fcgov.com> Copy Christopher VanHall <cvanhall@fcgov.com> • Judy Schmidt <jschmidt@fcgov.com> Ryan Malarky <rmalarky@fcgov.com> • stacy lynne < stacy_lyn ne@comcast. net> Christine Macrina <cmacrina@fcgov.com> • datteberry@fcgov.com • Delynn Coldiron <decoldiron@fcgov.com> August 7, 2018 Good Morning Tom, I appreciate your congenial professionalism during this challenging situation. Your summary below mostly captures our conversation, and for legal clarity, I will add the following: 1. Ms. Daggett denied a substantial portion of the CORA based on alleged attorney -client privilege. Until our phone conversation yesterday, you have not been involved at any other time in discussions with the City about the denial of the CORA that is at issue here. Further, because you are not an attorney, you do not have the legal authority to withhold public records on the grounds of attorney -client privilege. Simply, you are not the custodian of this record, nor are you the person who denied the CORA request. 2. 1 declined to pay the fee for the privilege log, not because of the additional costs involved, but because the City is not providing the contents of the privilege log that would be in compliance with CORA statutes. Specifically, I said to you "it's not about the money, it's that I'm not going to pay for an insufficient record". And then I referred to a similar case that Judge Devin Odell handled with the Poudre School District. 3. You confirmed that City Attorney Carrie Daggett is the custodian who denied the record that was the topic of our phone conversation yesterday (August 6, 2018). 1 told you I was concerned that we were not complying with CORA laws because you are not the custodian who denied the record request and because you made the statutorily - required phone call instead of the custodian. My concern, as I said to you during our phone conversation, is respect for the law and for your position (Director of Community Development and Neighborhood Services), in the same way I am concerned that Christine Macrina (Boards and Commissions Coordinator) was placed in a position much like you are in now. 4. We finished our conversation at an impasse because you explained that the City is not willing to provide a privilege log that would include the specific items needed to satisfy compliance with CORA laws. Thank you, Stacy Lynne Investigative Journalist On August 6, 2018 at 3:59 PM Tom Leeson <tleeson(c-Dfcgov.com> wrote: Stacy — thank you for returning my call today so that we could confer to determine if this dispute may be resolved without filing an application with the district court. It is my understanding from the call that feel the City is not meeting the CORA requirements by not providing you all the records you originally requested. You also feel that 1, as CDNS Director, am not the records custodian, so the City is not meeting the CORA requirements by me calling on behalf of the City. I confirmed that the City remains willing to provide a privilege log in the format previously offered if you pay to the City $75.00 for the costs of preparing the log. You believe the privilege log in the format previously offered is not meeting the CORA requirements, and therefore, we are at an impasse. https:Hconnect.xfinity.com/appsulte/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018 Xfinity Connect Re_ CORA Request Printout Page 2 of 2 I hope this adequately summarizes our conversation. Cheers, Tom Leeson, AICP Community Development and Neighborhood Services Director City of Fort Collins 970.221.6287 (0) 970.846.2133 (C) tleeson(a)fcgov.com https:Hconnect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.htm I?print_ 153369... 8/7/2018 Xfinity Connect RE_ CORA Request Printout Pagel of 3 Christopher VanHall <cvanhall@fcgov.com> Exhibit 22 RE: CORA Request To STACY LYNNE <stacy_lynne@comcast.net> • Tom Leeson <tleeson@fcgov.com> Carrie Daggett <cdaggett@fcgov.com> Copy Judy Schmidt <jschmidt@fcgov.com> Ryan Malarky <rmalarky@fcgov.com> • Christine Macrina <cmacrina@fcgov.com> Darin Atteberry <datteberry@fcgov.com> • Delynn Coldiron <decoldiron@fcgov.com> Ms. Lynne: 8/7/2018 3:59 PM Ms. Daggett asked me to respond and clarify that she is not the custodian of the withheld records. Tom Leeson, Director of the CDNS department, is the custodian of the records for his department and may assert attorney -client privilege regarding those records. See, Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215, 1220 (Colo. 1982)(en banc)("...the attorney -client privilege exists for the personal benefit and protection of the client who holds the privilege, and that it must be asserted by the client"). Regards, Christopher Van Hall Assistant City Attorney City of Fort Collins 300 LaPorte Avenue PO Box 580 Fort Collins, CO, 80521 970.416.2082- Direct 970.221.6327- Fax cvanhall a fcgov.com STATEMENT OF CONFIDENTIALITY & DISCLAIMER: THE INFORMATION CONTAINED IN THIS EMAIL MESSAGE AND ANY ATTACHMENTS IS ATTORNEY -CLIENT PRIVILEGED, CONFIDENTIAL, AND INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS EMAIL IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE CEASE VIEWING THE CONTENTS, NOTIFY THE SENDER IMMEDIATELY BY REPLY EMAIL, AND PERMANENTLY DELETE THIS EMAIL AND ANY ATTACHED MATERIALS. From: STACY LYNNE <stacy lynne@comcast.net> Sent: Tuesday, August 07, 2018 11:56 AM To: Tom Leeson <tleeson@fcgov.com>; Carrie Daggett <CDAGGETT@fcgov.com> Cc: Christopher VanHall <cvanhall@fcgov.com>; Judy Schmidt <ischmidt@fcgov.com>; Ryan Malarky <rmalarky@fcgov.com>; stacy lynne <stacy lynne@comcast.net>; Christine Macrina <cmacrina@fcgov.com>; Darin Atteberry <DATTEBERRY@fcgov.com>; Delynn Coldiron <DECOLDIRON@fcgov.com> Subject: Re: CORA Request August 7, 2018 https://connect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018 Xfinity Connect RE_ CORA Request Printout Page 2 of 3 Good Morning Tom, I appreciate your congenial professionalism during this challenging situation. Your summary below mostly captures our conversation, and for legal clarity, I will add the following: 1. Ms. Daggett denied a substantial portion of the CORA based on alleged attorney -client privilege. Until our phone conversation yesterday, you have not been involved at any other time in discussions with the City about the denial of the CORA that is at issue here. Further, because you are not an attorney, you do not have the legal authority to withhold public records on the grounds of attorney -client privilege. Simply, you are not the custodian of this record, nor are you the person who denied the CORA request. 2. 1 declined to pay the fee for the privilege log, not because of the additional costs involved, but because the City is not providing the contents of the privilege log that would be in compliance with CORA statutes. Specifically, I said to you "it's not about the money, it's that I'm not going to pay for an insufficient record". And then I referred to a similar case that Judge Devin Odell handled with the Poudre School District. 3. You confirmed that City Attorney Carrie Daggett is the custodian who denied the record that was the topic of our phone conversation yesterday (August 6, 2018). 1 told you I was concerned that we were not complying with CORA laws because you are not the custodian who denied the record request and because you made the statutorily -required phone call instead of the custodian. My concern, as I said to you during our phone conversation, is respect for the law and for your position (Director of Community Development and Neighborhood Services), in the same way I am concerned that Christine Macrina (Boards and Commissions Coordinator) was placed in a position much like you are in now. 4. We finished our conversation at an impasse because you explained that the City is not willing to provide a privilege log that would include the specific items needed to satisfy compliance with CORA laws. Thank you, Stacy Lynne Investigative Journalist On August 6, 2018 at 3:59 PM Tom Leeson <tleeson@fcgov.com> wrote: Stacy — thank you for returning my call today so that we could confer to determine if this dispute may be resolved without filing an application with the district court. It is my understanding from the call that feel the City is not meeting the CORA requirements by not providing you all the records you originally requested. You also feel that I, as CDNS Director, am not the records custodian, so the City is not meeting the CORA requirements by me calling on behalf of the City. I confirmed that the City remains willing to provide a privilege log in the format previously offered if you pay to the City $75.00 for the costs of preparing the log. You believe the privilege log in the format previously offered is not meeting the CORA requirements, and therefore, we are at an impasse. I hope this adequately summarizes our conversation. https://connect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018 Xfinity Connect RE_ CORA Request Printout Page 3 of 3 Cheers, Tom Leeson, AICP Community Development and Neighborhood Services Director City of Fort Collins 970.221.6287 (0) 970.846.2133 (C) tleeson@fcgov.com https://connect.xfinity.com/appsuite/v=7.8.4-27.20180621.065846/print.html?print_ 153369... 8/7/2018