A judge has ordered El Paso County to pay an estimated $30,000 in attorneys’ fees to The Gazette and five other media outlets, ruling that a county official improperly withheld records relating to the 2018 fatal shooting of sheriff’s Deputy Micah Flick.
The county’s bill could have been capped at roughly $2,000 had it not opposed the media consortium’s initial reimbursement request — leading to further litigation.
“It’s important that government officers be reminded — often — that they work for citizens, and that laws are in place that clearly state those citizens have the right to know about autopsies and other public records in criminal cases like this,” Gazette Editor Vince Bzdek said in a statement.
The ruling serves to drive home “citizens’ rights to transparency from their government,” Bzdek added.
It marks the latest victory by media outlets involving the release of public records that journalists use to do their jobs.
It’s unclear if El Paso County intends to appeal.
“We made the decision to litigate in good faith, and while we respect the court’s opinion, we are considering our next legal steps,” according to a statement sent by county spokesman Matt Steiner.
The battle blew up last year after then-county Coroner Dr. Robert Bux refused to release the autopsy report for Flick, 34, who was shot in the line of duty Feb. 5, 2018, by 18-year-old suspected car thief Manuel Zetina, who was killed in return fire by deputies.
Colorado law classifies autopsies as public records that should be released except under “extraordinary” circumstances.
The County Attorney’s Office, arguing on Bux’s behalf, tried to make the case that releasing the autopsy would do “substantial injury to the public.”
The Gazette, and outlets, including KKTV, KRDO, KOAA and the Colorado Springs Independent, argued that Bux had engaged in a “pattern and practice” of withholding autopsy reports for reasons unsupported by the law.
The Coroner’s Office has invoked “substantial injury to the public” in withholding autopsies in seven cases in 2017 and 2018, mostly arguing that their release could impair an ongoing investigation. The Gazette ultimately prevailed in obtaining the documents in several of those cases after continuing litigation.
Bux eventually released Flick’s autopsy voluntarily after Colorado Springs police closed their investigation, sidestepping a showdown in court.
However, the county contested the consortium’s request for legal fees, leading to two lengthy court hearings that ran up the tab.
Steiner said the county weighs requests for reimbursement on a “case-by-case basis” and sidestepped a question about why the county elected to pursue a challenge in this circumstance.
In siding against the county, 4th Judicial District Judge Michael McHenry concluded that the Coroner’s Office was unable to meet “any part of its legal burden” when it petitioned in July to have the report sealed, said Denver First Amendment attorney Steve Zansberg, who argued the case.
The Colorado Open Records Act entitles media outlets and others to seek reimbursement if they must go to court for records that should have been given freely.
“The whole reason these six entities decided to fight this was to send a message,” Zansberg said.