Montezuma health department likely breaches open records law

Tuesday, Oct. 31, 2017 11:31 AM
The Montezuma County Health Department has failed to provide restaurant inspection records to The Journal, citing a staff shortage, a faulty database and insufficient funding.
The bill for a public records request for restaurant inspection reports in Montezuma and Dolores counties is too high, a First Amendment lawyer says.

The Montezuma County Health Department has failed to provide restaurant inspection records to The Journal in compliance with Colorado open records law, citing a staff shortage, faulty database and insufficient funding.

After three months of delays in providing the reports, the department violated state law on several fronts by charging The Journal an excessive fee for copies of the public records, according to First Amendment lawyer Steven Zansberg.

On Monday, health director Bobbi Lock and specialist Melissa Mathews met with the Montezuma County commissioners to discuss staffing needs, and were approved to hire an assistant for the environmental health department.

The health department is also considering raising inspection fees in order to hire staff.

The Journal’s requests, first made in May, reached an impasse after July 12, when the newspaper submitted a written request for 143 inspection reports on restaurants and food-serving facilities in Montezuma and Dolores counties between July 1, 2016, and June 30, 2017.

On July 27, the health department emailed a delivery date of Sept. 29 and a quote of $518.85 for the records.

Director Bobbi Lock argued that the department cannot afford to pay its inspector for the work – she needed the additional money from The Journal to cover its costs.

But according to Zansberg, of the firm Levine Sullivan Koch and Schulz, the health department’s price nonetheless violates Colorado law on several fronts. He disputed the charges on behalf of The Journal in an Aug. 4 letter to the health department.

Lock’s price for the records includes:

A sum of $50 for two hours, at $25 per hour, for office manager Laurel Schafer to make phone calls, emails and gather information.A sum of $336.60 for 11 hours at $30.60 per hour for restaurant inspector Melissa Mathews to pull the records, plus one hour at $25 per hour.A sum of $107.25 for copies of the 143 three-page reports.The charge of $336.60 for Mathews to pull the reports appears to be the health department’s most significant breach of the Colorado Open Records Act (24-72-205(6)(a) CRS 2017), he said, but it fell short on several others as well.

A CORA provision states that a custodian of public records may not charge more than 25 cents per standard page.Another CORA provision states that the custodian may not charge more than $30 per hour to research and retrieve public records, and that the first hour is free.A third CORA provision states that the rate of $30 per hour may apply if the fee schedule and policy have been posted on the custodian’s website or published publicly before the CORA request was made. The health department’s price quote did utilize the research and retrieval provision, but it was applied inaccurately, Zansberg stated.“It is our understanding that the Montezuma County Public Health Department did not have a written policy, as set forth above, either posted on its website, or otherwise ‘published’ to the general public prior to the date Mr. Mimiaga submitted his records request to you, as the records custodian,” Zansberg said.

At the time of the request, The Journal found no fee schedule for public records on the Montezuma County Health Department’s website or on the county’s information boards or website. The Journal found no published fee schedule published by the newspaper, going back to 2013.

Zansberg also stated that “there is no basis in the law for charging The Journal for the two hours of time Ms. Schafer has spent, to date, on ‘phone calls, email, and gathering information for estimate.’”

He further stated that the health department’s charge of $25 per hour for the first hour and $30.60 per hour for 11 hours is unlawful, even if it qualified for the research and retrieval provision. The law states that the first hour is free, and subsequent hours cannot exceed $30 per hour.

In conclusion, Zansberg recommended a quote of $107.25 for copies of the reports.

On Wednesday, Aug. 9, Bobbi Lock said The Journal’s CORA request was “at a standstill” as lawyers discussed it. “It is high priority, and we are waiting to hear back. Whatever they tell us to do, we will do.”

In a phone message to Zansberg, Montezuma County attorney John Baxter said he wanted to meet about the issue, but would be out of town until later this week.

‘Not enough time in the day’The Journal first approached the health department in May in response to letter writers who asked why the inspection reports were not published in the newspaper.

At the time, the health department said it would charge $5 per report because of the burden it placed on Melissa Mathews, the environmental health specialist responsible for inspections. The health department suggested that the newspaper delay its public records request until the end of June, when the all the inspections were to be completed.

The Journal agreed to wait, but objected to the fee of $5 per report.

Health department director Lock argued that the fee was justified because she had only one inspector.

“She is overwhelmed, and there is not enough time in the day to take care of everything as it is,” Lock said. “Five dollars per report will help pay for the additional staff time to generate the reports.”

Lock’s price quote came to $518, or $3.62 per report.

As county environmental health specialist, Mathews is responsible for regularly inspecting restaurants, cafeterias, schools, resorts, and convenience and grocery stores in Montezuma and Dolores counties. Her duties include inspections for septic systems, events and festivals, and child care facilities. She also works to prevent diseases such as hantavirus, West Nile disease and bubonic plague, which can be transmitted from animals to humans.

“It is a lot to keep track of for one person, and it requires a lot of travel as well,” Mathews said. “As the population grows, so does the workload. All the inspection duties leave little time for the public-education aspect of the job.”

A new database for inspection reports also hampers the department, she said.

The Montezuma County Health Department is responsible for inspecting restaurants, food businesses, and schools in Montezuma and Dolores counties according to Colorado laws and regulation by the Colorado Department of Public Health and Environment.

Restaurants and food businesses are required to provide a copy of their latest inspection report if a person requests one, Mathews said.

Lock said the department would like to publish the reports online, like the San Juan Public Health department, but does not have enough staff.