D. Court action.

(1) If inspection of any public records is denied, the person who requested the record may file an application with the district court in the district where the records are located. Colo. Rev. Stat. § 24-72-204(5). See Daines v. Harrison, 838 F. Supp. 1406 (D. Colo. 1993). In order to be entitled to recover attorneys'fees if she prevails, the person who requested the record shall notify the custodian who has denied access to records of intent to file suit within at least 3 days prior to filing the application. Colo. Rev. Stat. § 24-72-204(5).

(a) A hearing on the application is to be held "at the earliest practical time." Colo. Rev. Stat. § 24-72-204(5).

(b) The burden of proof is on the custodian to show exemption from inspection. See Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). The applicant does not bear the burden of proving that the custodian's denial of inspection was arbitrary or capricious. Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo. App. 1990).

(c) Unless the court finds denial of inspection was proper, it shall order the custodian to permit the inspection requested. Colo. Rev. Stat. § 24-72-204(5).

(d) If the court finds that records were improperly withheld, the custodian shall be ordered to pay the applicant's court costs and attorney fees. Colo. Rev. Stat. § 24-72-204(5).

(2) Willful and knowing violation of the Open Records Act is a misdemeanor, punishable by up to a $100 fine, up to 90 days in county jail, or both. Colo. Rev. Stat. § 24-72-206. This section, however, does not create a private right of action for violation of the Open Records Act. Shields v. Shelter, 682 F. Supp. 1172, reh'g denied, 120 F.R.D. 123 (D. Colo. 1988).

(3) The procedure for obtaining a show cause order in Colo. Rev. Stat. § 24-72-204(5) and the penalties of Colo. Rev. Stat. § 24-72-206 are the exclusive remedies available under the Open Records Act. Board of County Comm'rs v. HAD Enterprises Inc., 35 Colo. App. 162, 533 P.2d 45 (1974); Pope v. Town of Georgetown, 648 P.2d 672 (Colo. App. 1982). There is no private right of action for violation of the Open Records Act. Shields v. Shelter, 682 F. Supp. 1172, reh'g denied, 120 F.R.D. 123 (D. Colo. 1988). Hence, failure to follow the procedure outlined by Colo. Rev. Stat. § 24-72-204(5), either by filing the wrong kind of action or by failing to name the custodian of records as a defendant, will not allow attorney fees to be awarded under that section. Pope v. Town of Georgetown, 648 P.2d 672, 673 (Colo. App. 1982).

(4) Who may sue? Any person whose request for access to or inspection of public records has been denied may seek an order directing the custodian to show why inspection should not be permitted. Colo. Rev. Stat. § 24-72-204(5).

(5) Proper Parties. The proper party defendant to an application for a show cause order is the custodian who has denied the request for inspection. See Colo. Rev. Stat. § 24-72-204(5); Pope v. Town of Georgetown, 648 P.2d 672, 673 (Colo. App. 1982).

(6) Pro se Actions. Although no rule restricts an applicant from filing an action under the Open Records Act pro se, any non-lawyer who acts as a lawyer on his or her own behalf is held to the same rules and knowledge of the law as an attorney. See Viles v. Scofield, 128 Colo. 185, 261 P.2d 148 (1953). Because the custodian will most likely be represented by the Attorney General or agency counsel, a pro se litigant would be at a distinct disadvantage. For an action under the Open Records Act brought (and lost) by an applicant pro se, see Uberoi v. University of Colorado, 686 P.2d 785 (Colo. 1984).

(a) Corporations. Under Colorado law, a corporation cannot appear or proceed pro se. Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 P. 718 (1923); Woodford Mfg. Co. v. A.O.Q. Inc., 772 P.2d 652 (Colo. App. 1989); BPQ Industries Inc. v. State Bd. of Equalization, 694 P.2d 337 (Colo. App. 1984). A pleading which purports to be filed by a corporation pro se is in violation of law and null and void for all purposes. See Bennie v. Triangle Ranch Co., supra; Woodford Mfg. Co. v. A.O.Q. Inc., 772 P.2d at 654.

(b) The sole exception to this general rule is allowed under Colo. Rev. Stat. § 13-1-127(2), which allows a corporation to appear through an officer or director where the amount in controversy does not exceed $10,000.00, the corporation is closely held, and there has been a written resolution signed by at least 50 percent of the shareholders. See Colo. Rev. Stat. §§ 13-1-127(2)(a) and (b).

(7) Costs and attorneys' fees. Attorneys' fees shall be awarded to a person who has been denied access to public records and who subsequently prevails after applying to a court to have such records made open. Additionally, where a government agency seeks guidance from the courts as to whether a record is open or closed, no attorneys' fees are available. Colo. Rev. Stat. § 24-72-204(5).