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Marilyn S. Chappell, Esq. <br />August 12, 1988 <br />Page 2 <br />This matter is governed by ~ 24-72-201, C.R.S., et seq. DOH is not a private <br />corporation. It is a public agency exercising the police power of the State of Colorado. <br />The records which we desired to see and analyze are public records of this State. They <br />are declared by law to be open at all times and we are entitled to see them without any <br />announced reason. Ms. Marek being the custodian is a circumstance over which we have <br />no control. Failure by DOH to permit us free and open access (without your supervision) <br />is a violation of the public records law. <br />Your reference to DR7-104(x)(1) is wholly inappropriate. It is the public <br />policy of the State of Colorado ingrained in the statute that the people of this state have <br />an absolute right to see the records and files of any state agency. This is true of every <br />scrap of paper unless the statute specifically excludes it. Tn this regard, privileged <br />material may be excluded if it is specifically exempted in the statute. AIs. 114arek's <br />determination on that issue will not be objected to until we know what is excluded. The <br />effort to exclude "work product" would not be proper and we object to that. The statute <br />contains no such exclusion. <br />Your threat to enhance any penalty which may he assessed against WFC is <br />something that we take very seriously. This penalty proceeding is but one short step <br />removed from a criminal action. In the context of a criminal proceeding threats to <br />enhance penalties or charges so as to inhibit research or discovery would be decidedly <br />prosecutorial misconduct. That quite likely is also true here. This is a penal proceeding. <br />Your demand that we conduct our research and discovery under your <br />supervision and your threat to enhance the penalty if we do not has substantially <br />suppressed and interfered with our right to procedural due process as well as our rights <br />under the public records laws of the State of Colorado. <br />Alvin J. <br />JONES, <br />J~ <br />cc: Paul Ferraro, Director <br />Water Quality Control Division <br />Sandy Marek <br />Permits and Enforcement Section <br />Mike Long <br />Mined Land Reclamation Division <br />Lawrence A. DeClaire, Esq. <br />Frank Johnson, Esq. <br />John SVoodling <br />Division of Wildlife <br />Linde Trumbly, Esq. <br />Felicity Hannay, Esq. <br />Dr. Thomas Vernon <br />Executive Director <br />Department of Health <br />Perry Olson <br />Acting Director <br />Division of Wildlife <br />Yours very truly, <br />