Democratic lawmakers at the Colorado State House have passed legislation that creates exemptions to existing open meetings laws. The bill was passed and signed into law by Governor Polis during Sunshine Week which runs March 10-16.
Sunshine Week is a national campaign that highlights the importance of open government and the dangers of excessive and unnecessary secrecy.
Jackie Sedley spoke with Jeff Roberts, the Executive Director of the Colorado Freedom of Information Coalition, which hosted an event in Denver on March 13, 2024, to commemorate Sunshine Week.
Jackie Sedley: So let's start with some history. How did Sunshine Week come to be?
Jeff Roberts: So Sunshine Week has been around not all that long. It was started in 2005 by the American Association of News Editors which technically I don't think exists anymore. It is now run by the Breckner Freedom of Information Project at the University of Florida. And as you said, it's a nationwide celebration of the laws that entitle you to information about your government.
It's an effort to make sure that people know about the laws and understand the laws.
Sedley: So, as I mentioned, you're a part of the Colorado Freedom of Information Coalition, also known as CFOIC. Tell me a bit about the work that you do on a broader scale before we get into more details about freedom of information.
Roberts: CFOIC has been around since 1987, but it's the last 11 years or so that we've gotten very active and we've tried to be an everyday resource for not only the journalism community in Colorado but for everyone. We do multiple things, the main thing probably is our Freedom of Information Hotline.
For no charge people will contact us and seek our help and, we try to help them understand and use the laws, which in Colorado are the Colorado Open Records Act (CORA), the Criminal Justice Records Act, the Open Meetings Law, and court access rules. So we do our best to do that and if needed, we try to connect them with attorneys who specialize in these matters.
I also write quite a bit about these laws. You'll see that on our website. We also provide a very comprehensive online guide of these laws and it's absolutely free for anyone to use.
We used to do it in booklet form, but doing it online allows me to make it much more comprehensive and link to the law and the case law and also update it whenever there's a change and that happens kind of frequently.
So I urge people to go check it out on our website There's a tab on there called Sunshine Laws Guide, so they can see it there.
Sedely: So talking a bit more about those guidelines, we'll touch on some bills that are currently working through the state legislature later on, but first, what are some of the current most prominent standing obstacles and exemptions to obtaining public records in Colorado right now?
Roberts: Right. So the way the open records law works, at least the CORA works, is that there's a very strong presumption of openness in the law. But there are exceptions in there as well. And some exceptions are throughout the state statutes and sometimes they're in case law. So sometimes these exemptions are applied incorrectly. So we have to fight back against those.
Probably the most commonly incorrectly applied one is for personnel files. So a public employee's information about a public employee's performance, or how they're disciplined, things like that. Governments try to withhold those records. We have to fight back against that, and we often prevail in that regard. A big obstacle to obtaining public records in Colorado is fees, and it's going to get worse unfortunately. So we have what's called a research and retrieval fee built into CORA. It's an hourly rate after the first hour, which must be free. It's currently $33.58 an hour, but it's tied to inflation and adjusted every five years. And this July it's going to go way up because we all know what's happened with inflation. So, it's probably going to be more than forty dollars an hour. And when you multiply that forty dollars by five, 10, 20 hours, obtaining public records can become very expensive.
So, that's the biggest obstacle. And I know we'll talk a little bit about legislation that's happening now, but I'm sort of seeing the current for a bill in the context of something that's going to happen automatically with the fees. And that's one reason that we're sort of pushing back against it.
Sedley: How does Colorado compare to other states in terms of access to public records?
Roberts: You'll see that the Associated Press this weekend published some stories about that. And it's really kind of all over the place with how different states handle access to public records. I would say that we're better in some respects and worse in some respects. Better, generally, in things like the timing in the law of when you're supposed to be able to get public records. Although that's kind of fudged all the time. Worse in the respect to the fees that I just mentioned. Not everybody, and not all the states charge for fees. Some don't charge as much as Colorado does. There are other things that are better and have gotten a little bit better. There are two public records laws, there's the CORA and the Criminal Justice Records Act. They work very differently. There's different presumptions of openness there. And generally, it's been very difficult for reporters and others to get a lot of criminal justice records in the past, but the legislature has made improvements the past few years in police internal affairs records and police body camera footage.
So, those are more available than they used to be. There are still some loopholes in those laws that we'd like to see fixed. But we've made some improvements there that deal with police transparency and accountability.
Sedley: You said 'based on different presumptions of openness' - that is potentially a pretty subjective concept, right? How is that defined through your organization? How do you conceptualize what openness means?
Roberts: Yeah, that's a good question. And the way the CORA, the Colorado Open Records Act, is supposed to work there is a presumption of openness. And it's really when those exemptions apply that you're not supposed to get records.
But some things, other things happen. We had a lawsuit this past year over text messages. There was a very violent hailstorm at Red Rocks that you might remember last summer. Reporters were trying to get to the bottom of what the City of Denver's response to that was. And so a reporter at 9News requested text messages that the person who runs Red Rocks and the person who is that person's boss at Denver Arts and Venue were sending each other, not only during the storm, but the next day.
The city of Denver said 'Well, no, those aren't public records because they're sent and received on their cell phones, and we don't collect those.' So the way the law has worked, in practice, is that it's not the fact that they're on cell phones, but it's the content of the message that determines whether they're public business or not.
So, there was a lawsuit over this and the judge said, 'Yes, they're public record. They had to do with the business of Red Rocks, which is a city facility. And so you can get those because they're on that employee's phone.' One of the phones was the employee's personal phone. The other one was a city-issued phone and the messages were gettable from that. And so, the judge ordered them to be released. So sometimes those types of things happen as well.
In the criminal justice records law, there is a lot of leeway, generally, given to a criminal justice agency to decide whether disclosure of records would be, 'contrary to the public interest or not.' And so they're supposed to conduct a balancing test of factors. There's actually case law on this that came out of Columbine. And they're supposed to weigh factors that include things like an ongoing investigation, privacy issues, but also the public interest, which is what we all care about, right? And so, that's what determines openness in a lot of ways. And it is, like you said, subjective. It can be
Sedley: I wanted to touch on several bills that are working their way through the legislative process right now that would challenge government transparency and accountability if passed.
House Bill 24-1296, which focuses on modifications to CORA, the Colorado Open Records Act that we've been talking about.
Roberts: So this CORA bill was introduced, the reason was to help government records custodians, that's what they're called, the people who are in charge of keeping the records of government, because they're getting more CORA requests than they used to.
And a lot of this has to do with sort of our political divide. People are getting more interested in state and local government, the federal government obviously, and one thing that they do is make more requests of government.
And so the sponsor of this bill (Rep. Cathy Kipp) is trying to ease the burden on records custodians, and this bill has changed a bit since she first conceived of it, we've been involved in a lot of the discussions, and she has made some improvements with it.
But we still think that it creates obstacles. So it gives them more time to respond to records requests and it also allows them to go to court to get someone declared to be a 'vexatious requester of public records.' The way the bill was introduced, the government itself could decide that someone was vexatious, and what that would mean in practice is they could delay the production of public records to that person for more than a month.
And now the way the bill is worded, they can go to court to do that, but someone still would have to fight that designation in court. And we think that's an issue.
She has made accommodations for the news media in this bill. The delays and that vexatious provision wouldn't apply to the press, and the reason for that is that the press is in the business of informing everybody else. You can make an argument that maybe there should be an accommodation for the press, although some people don't like that differentiation.
And the bill does some other things that we think are unnecessary. She did have a very blanket provision in there about privacy, protecting privacy, that she has now taken out of the bill, which we're happy about because we think it could have been interpreted a lot of different ways, especially as it pertains to those disciplinary records of public employees that we talked about.
Sedley: The other that I wanted to ask you about is Senate Bill 24-157, that's the Colorado Open Meetings Law for the General Assembly, and I wanted to bring that up because I know the legislature has been sued twice in the past year over Colorado Open Meetings Law issues, is that right?
Roberts: Yes, that is correct. One of those lawsuits was actually brought by two members of the General Assembly, two members of the House. And that was settled and then there was another lawsuit brought by a conservative group called the Public Trust Institute about something called quadratic voting. This was an anonymous balloting system that the caucuses of the legislature were using to help them decide bills that affect the state budget.
The issue with that is that we have this Open Meetings Law, which was part of the Sunshine Act of 1972, the voters of Colorado actually put this into the statute. It's the public policy of Colorado that the formation of public business shall not be conducted in secret, that's what the voters wanted in 1972 and the law still says that.
And so this quadratic voting system, a judge found that it was an the illegal secret ballot and what they call a a serial meeting of the legislature. And so SB 24-157 makes some pretty significant changes to that 1972 law.
It changes the definition of what they consider public business to mean only things that have been introduced in the legislature, not things that they're discussing for that.
And then another thing that it does that is most concerning to us, is that it allows unlimited meetings by email, text message, disappearing messaging app. They use these apps called Signal and WhatsApp and things like that, where the message sometimes self destructs. And they meet that way and the Sunshine law as currently written says that a meeting by electronic means is a meeting as well that's subject to the law.
And so this would allow legislators to meet in an unlimited way that way. Those records of those meetings, theoretically would be subject to the Colorado Open Records Act. But they may not exist because they could disappear, or they could be deleted, and there are also exemptions in the law, one in particular called work product, that may mean that the person asking for those records could be denied.
Sedley: Jeff Roberts from the Colorado Freedom of Information Coalition. Thank you so much for talking with us this morning.
Roberts: Thank you very much for having me.
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