Judges across the state are not uniformly following the new regulations, which former Chief Justice Nathan Coats last year said were designed to keep cases from "disappearing into a dark hole." Criminal court records filed since the rule took effect in May show spotty and at times lackluster compliance, the Post's review found.
The rule change followed advocacy by open records proponents and a 2018 Denver Post report that concluded judges suppressed thousands of court cases for years without public explanation. Since May, judges in Colorado criminal cases have been required to issue public, written orders whenever they hide criminal cases or court records from public view. The judges must explain why they are making the records secret and say how long the suppression will last.
Five cases were fully hidden in Colorado since May; none of those complied with the new requirements, according to data and court records provided by the Colorado Judicial Department. Three cases had no public orders on the suppression, and two had orders that did not meet the new standard.
In another eight cases, judges issued written orders about the suppression of particular documents, rather than entire case files. Of 24 orders limiting public access identified by the Post in those cases, 20 appeared to comply with the new rule and four did not.
But that data, gathered from cases where the formal suppression process was already under way, doesn't reveal instances in which the right procedures were completely ignored — a problem that has cropped up in several high-profile court cases this year.
"When the Supreme Court adopted and implemented this rule change, it was not a suggested rule," said Rob McCallum, spokesman for the Colorado Judicial Department. "It is a rule to be followed by the judges, and is to be interpreted by the judges appropriate to the filings in their cases."
When former Fifth Judicial District Chief Judge Mark Thompson was charged in Summit County with menacing someone with an AR-15-style rifle in October, Judge Paul Dunkelman granted a request for secrecy in a one-line order that did not follow the amended rule.
In July, 20th Judicial District Chief Judge Ingrid Bakke initially granted a request that a video in the Boulder King Soopers mass shooting case be kept from the public with a similar one-line order that did not follow the rule.
In Chaffee County, a large number of documents in the case of Barry Morphew, who is accused of killing his wife, were filed by attorneys as suppressed until the Post asked for the judge's written order justifying the suppression, after which Chief Judge Patrick Murphy ordered the documents be made public.
"The court believes that the parties were under the misconception that the court had ordered that pleadings in the case needed to be filed as suppressed," a minute order read. "The court did not issue such an order."
Some court records in Colorado are always considered private, including personal financial information or pre-sentence reports, and attorneys can file those records as private without a judge's order, McCallum said. But if a record is not denoted as private by court rules, state laws or other regulations, then attorneys must ask judges to make the records secret and go through the new process, McCallum said.
"If we have a party who wants to file everything under suppression, they are going to have to follow this rule every single time," he said.
When limiting public access to court records, judges' written orders must specifically identify the "substantial interests" served by making the records secret, and must find there is no less drastic way to protect those interests, like by partially redacting a record instead of fully blocking it from the public's view, according to the new rule.
In orders reviewed by the Post, what judges identified as those interests varied significantly. In a Weld County case, Judge Allison Esser wrote that she was blocking public access to some court records in order to protect "privileged and otherwise private and confidential information regarding (the defendant's) mental health."
In other cases, judges cited only general topics, such as "privacy and security issues" or "risks to the defendant's security and safety," as the reasons for the secrecy, records showed.
Those vague explanations don't align with the intent of the new rule, said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
"The rule is intended to be more specific than just saying, 'privacy,'" he said. " ... The point of the rule is to give the public some idea of why a court record needs to be closed, at least for a particular time period, and that doesn't tell the public much of anything."
The vague explanations also make it difficult to know whether the information being kept secret is actually private information, said attorney Steve Zansberg, president of the Colorado Freedom of Information Coalition. Privacy is a constitutional right, and the law recognizes that some records, like a person's HIV status, psychological records and medical records, shouldn't be public, he said.
"But not everything is private," Zanzberg said. "It has to meet the standard of what is really private. I can explain why something is highly personal, private and intimate without disclosing that information. And that's what judges are expected to do."
The new rule also requires judges to set the duration for which records will be kept secret. Some of the judges' orders reviewed by the Post closed the records to the public until the end of the defendants' cases. Several orders issued by 18th Judicial District Court Judge Darren Vahle in Arapahoe County prohibited public access to some court records for 10 years in order to protect the "privacy" of various people.
Zansberg took issue with that decade-long duration. The rule says judges must "indicate a date or event certain" by which the order will expire, but it doesn't set an explicit limit on how long secrecy can last.
"So — I'm going to declare this order is only going to remain in effect for 500 years," Zansberg said. "Would that be in compliance with this? No. And I frankly don't think that 10 years is either."
Still, some explanation is better than none, he added.
"After years and years of going back again and again to the judicial branch, we got this rule in place," he said. "And is it perfect? No. Is it a lot better than things were? Yes."
McCallum said the state's chief judges were briefed on the new procedures, and the chief judges were then responsible for communicating the changes to the judges in their judicial districts. He declined to discuss whether particular orders meet the requirements of the rule.
"That is not for me to interpret," he said.
Bill Campbell, executive director of the Colorado Commission on Judicial Discipline, said the commission hasn't received any complaints about judges not following the new rule. He added that such complaints would likely be handled through the courts, rather than falling under the commission's purview.
"The only way it would fall into our lap would be if the judge was really rude or something in the courtroom, out of line," he said. "Making a mistake, essentially, about when to unlock a file would normally not fall into our lap."
McCallum said judges' orders can be challenged in court if they do not comply with the rule, and Zansberg said he expects to see such challenges.
"Eventually in egregious cases, they may get litigated and challenged," he said. "But for now, we have this brand new rule. Previously they didn't have to say a word, and now they do."
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