Boulder Denies Access To Pot Criminal Checks

BOULDER, Colo. (AP) - The city of Boulder is refusing to release copies of criminal background checks that it ran on people applying for medical marijuana business licenses -- including five businesses that the city briefly shut down after principal investors or general managers were flagged by the checks.

The Camera recently requested copies of application records that would shed light on why the city rejected business licenses for High Grade Alternatives, 8th Street Care Center, Southwest Alternative Care, Timberline Herbal Clinic, Mountain Medicine Group and Fresh Baked Dispensary.

The six companies were shut down by the city earlier this month. One business had a zoning issue, while the other five had problems with background checks. The city announced last week that the five companies with background issues could stay open pending appeals.

City ordinance says that anyone with at least a 10 percent stake in a marijuana business must submit to a background check. Anyone convicted of a felony in the last five years cannot operate a medical marijuana business. The city application asks for information about felony convictions in the last 10 years, DUI convictions and any misdemeanors related to abuse of alcohol or illegal drugs.

In an email to the Camera on Thursday, city officials wrote that the "criminal background checks will not be provided for review."

They wrote that the city is not the "custodian" of the checks it performed on applicants, that the checks are "not public records of the city" and that they're considered criminal justice records and therefore aren't subject to the Colorado Open Records Act.

Ashley Kissinger, who represents the Camera and is an expert on open records and open meetings laws, said the city has no grounds to legally withhold the background checks.

"We don't agree with the city's denial because the records are subject to public disclosure," she said.

Kissinger rejected the city's claim that it can withhold the background checks because it is not the records custodian. While the city may not have generated the background reports, she said, it now has possession of them and has included the documents as part of a business licensing process.

She also dismissed the idea that the background checks can be withheld as protected criminal justice records.

"Records of adult arrests and convictions are always open to the public, and the city does not have discretion to withhold them," Kissinger said.

Sarah Huntley, a city spokeswoman, defended the city's position.

She said the city received the background reports from the Colorado Bureau of Investigation "for an express and limited governmental purpose," and it would be "a violation of law for the city to release them any more broadly than is required for that purpose."

"While there is perhaps a journalistic interest in these records, there are also legitimate privacy rights for the individuals who were participating responsibly in a city regulatory process," Huntley wrote.

She said the city would release parts of the license application, including the names of the people involved in the background checks so that anyone could run checks on them. But the price of that information is set at $405, according to the city's records manager, to cover nine hours of staff time needed to produce the records.

While state law allows governments to recover the cost of reproducing public records, Kissinger said that's an outlandish cost and an example of using the fee provision of the Open Records Act to effectively withhold public information.

The owners of the medical marijuana dispensaries and growing operations in question, meanwhile, are mostly keeping quiet about the reasons why the city denied their applications.

Eric Eychner, one of the owners of Timberline Herbal Clinic -- which has a growing operation in Boulder and a dispensary in Denver -- said his license application was denied because of the criminal history of a financial backer.

"I don't think they have the facts straight," he said of the city's denial.

Eychner declined to elaborate or identify the investor, but he did say the denial was based on a criminal charge "over 20 years ago, and it wasn't anything drug-related."

People who identified themselves as managers at the Fresh Baked Dispensary, Southwest Alternative Care and the 8th Street Care Center all declined to comment.

Phone messages left with High Grade Alternatives and the Mountain Medicine Group were not returned Thursday.

- By Heath Urie, The Daily Camera

(Copyright 2011 by The Associated Press.  All Rights Reserved.)