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Hearing on public records lawsuit suspended

Veronica Whitney

Michael Cacioppo, publisher of the weekly Speakout!, requested a show-cause hearing in September after he declined to pay the school district $1,692 to view documents he had requested. Cacioppo alleges the documents were public records and should be available at no cost.

Carol Curtis, Cacioppo’s attorney, has asked Moorhead to recuse himself because, as Cacioppo claims, Moorhead’s intervention as a judge would have been tainted.

“Mr. Cacioppo believes that Judge Moorhead has such a bias against him

that it would be improper for the judge to sit on this trial,” Curtis said.

Moorhead was the attorney for the town of Vail when Cacioppo sued the town to get public information in the early 1990s. Moorhead, however, said the reason he has recused himself from this case is that yet another case involving Cacioppo in which Moorhead represented Eagle County as county attorney is still pending.

In February, Cacioppo filed a lawsuit against the school district and Eagle County officials. The lawsuit, still pending, challenges the wording of last 2001 Ballot Question 3D, which provided the school district with extra money as a cost-of-living adjustment to the Colorado School Finance Act.

“This was the proper thing to do,” Moorhead said.

The hearing has been postponed awaiting appointment of a different judge and a new trial date.

The Judicial Canons for judges say they must avoid even the appearance of bias. Other Fifth Judicial District judges who have recused themselves from previous litigation involving Cacioppo include: District Judge William Jones; Magistrate Hugh Warder; County Judge Joseph Fattor; County Judge Terry Diem; and County Judge Fred Gannett.

The contested charges, said Rick Spitzer, director of technology for the school district, came because Cacioppo requested the district use procedures not normally used in applying for public records.

“The result of our search is sealed in an envelope and the only way he’ll get it is if he pays or the court orders us to give it to him. We contend he agreed to pay for the search,” Spitzer said. “I wouldn’t consider a common public record request we undelete files from the hard drive.”

After being offered to view the records on Sept. 16, Cacioppo declined to pay what the school district spent in the search, saying the documents are public records and should be available at no cost.

The Colorado Public Records Law says copies may be made of any public record at a cost of not more than $1.25 per page; however, an additional “reasonable fee” may be charged for special requests.

“This is an important case regarding the public right of access to public records,” Curtis said.

Cacioppo’s request stemmed from the circulation of a flyer in April advocating boycott of the advertisers in Speakout! Following the flyer, which was distributed to school district employees, Superintendent Mel Preusser wrote an e-mail to them saying the district didn’t condone the circulation of this information and does not support such a boycott.

The requested files were searched using a software program that looks for key words or phrases, Spitzer says, and a representative from RTP Technical Services assisted the district with the search – at a cost of $938. The rest of the charges are for Spitzer’s nine hours put into the retrieval and eight hours for David Cabin, network specialist for the school district, who also assisted. The total amount also includes $250 for the software to do the job.

“They (school district officials) have effectively denied us access to view the records by imposing an unlawful fee,” Cacioppo said. “I’m confident that the case will move forward and that a judge without bias will see the merits of my argument.

“If the school district were to prevail,” he added, “then average people couldn’t afford to get public record – and that would be an outrage.”

Curtis said there’s nothing in the open records statute that leads her to believe that paying for the retrieval is a reasonable request.

“It appears that what we need to do is have a judge interpret the Colorado Open Records Statute,” she said.

But e-mail, Spitzer said, isn’t considered public record unless it fits criteria.

“All along it has been the district position we didn’t promote a boycott through our e-mail system,” said Pam Holmes Boyd, spokeswoman for the

school district.

Veronica Whitney can be reached at 949-0555, ext. 454, or at vwhitney@vaildaily.com.


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