As a unit within the Colorado Attorney General’s Office, the Colorado Peace Officer and Training (POST) board documents and managers the certification of all active peace officer and reserve peace officers working across the state.
It also maintains a database on peace officers related to disciplinary action including “untruthfulness”, “revocation of POST certification”, “termination for cause”, “resignation or retirement while under investigation” or “following an incident”, and “being subject to a criminal investigation or crime that could result in revocation or suspension of certification.”
That’s important because the POST database keeps track of so-called “rogue officers” who move from one department to another, staying a step ahead of investigations that could get them fired.
Think of the case involving Waylon Lolotai, who resigned from the Denver Sheriff Department in 2016 during an excessive force investigation – he was caught on jail surveillance video pushed an inmate onto a metal staircase – only to be hired by Boulder Police Department. He later left Boulder PD after being investigated several times, including for an incident where he allegedly shoved a woman to the ground.
But can private investigators, journalists or members of the public get unfettered access to the POST database?
That’s the question currently being weighed by the Colorado Supreme Court. During a hearing last month justices heard oral arguments about whether or not POST is a criminal justice agency governed by the Colorado Criminal Justice Records Act (CCJRA), as the Court of Appeals determined in 2023, or whether it is an agency subject to the Colorado Open Records Act (CORA).
Agencies governed by the CCJRA can keep their records largely under wraps while agencies governed by CORA must release them according to the terms of the act.
Assistant Solicitor General Brittany Zehner, representing POST board director Erik Bourgerie, defended the characterization of POST as a criminal justice agency because she said it both investigated crime and collected criminal justice information.
CCJRA’s definition of a criminal justice agency is one that “that performs any activity directly relating to the detection or investigation of crime; the apprehension, pretrial release, posttrial release, prosecution, correctional supervision, rehabilitation, evaluation, or treatment of accused persons or criminal offenders; or criminal identification activities or the collection, storage, or dissemination of arrest and criminal records information.”
However, Katie Townsend, deputy executive director and legal director of the Reporters Committee for Freedom of the Press, said the Court of Appeals “expansive” interpretation of that definition could also encompass licensing agencies such as the Colorado Dental Board and the Colorado State Board of Pharmacy because they also collected and stored criminal justice records for background checks.
“It would clearly lead to absurd results,” she told the justices. “… There’s nothing to suggest that’s what the General Assembly intended, that anything, no matter how minimal, that brings you into the hyper-literal definition of criminal justice agency, is enough to put all of your records into the CCJRA and outside the reach of CORA.”
Townsend and Rachael Johnson, a Colorado-based attorney for the Reporters Committee, represent The Colorado Springs Gazette, Gazette reporter Chris Osher and the Chicago-based Invisible Institute.
Together they sued to obtain the POST database in 2021, hoping to use the records for reporting on rogue law enforcement officers who have moved from department to department after alleged transgressions. (The Invisible Institute recently launched a national police index with data from 17 states, but not Colorado, to help investigators, journalists and the public track officers’ employment histories.)
The court case follows another dispute covered by this blog where a judge slapped down Boulder PD’s attempt to charge a media organization $1,000 a minute for bodycam footage of a women being shot by officers, arguing the department was governed by the CCJRA which allows law enforcement agencies to impose “reasonable fees, not to exceed actual costs” for the search, retrieval and redaction of records.
The media organization requested the footage under Colorado’s Law Enforcement Integrity Act (LEIA) — not the CCJRA or CORA — enacted in 2020 following the killing of George Floyd in Minneapolis. They argued the LEIA contained no language authorizing Boulder to charge fees for unedited body-cam footage of incidents “in which there is a complaint of peace officer misconduct.”
