In need of transparency
Five ways to improve government in Colorado
John Reynolds died in police custody in Olathe after the 25-yearold stabbed himself with a letter opener and an officer Tased him multiple times before handcuffing him.
Colorado State University awarded 124 employees pay hikes that topped 10 percent even though roughly half their employees received raises closer to 2 percent.
Rocky Mountain Human Services, a Denver nonprofit that serves people with disabilities, misspent millions of dollars and provided employees annual Costco memberships for personal use.
And Adams County paid a $250,000 combined severance to three former district attorney’s office employees after they resigned.
In all four situations, Colorado officials initially hid the details from the public — abetted by inadequate state laws regarding government transparency.
Some particulars in those cases remain concealed. And many other important matters of public concern — whether disciplinary records for troubled cops or the prevalence of psychotropic drugs given to foster children — are shrouded in secrecy.
It’s no wonder the nonprofit Center for Public Integrity gave Colorado an F grade for its open-records laws.
The dire state of transparency in Colorado government is leading to an inflection point — one that demands a significant remake of the sunshine laws, if not a constitutional fix to ensure the accountability of the government to the people.
Riddled with major holes, the law’s problems are exacerbated by obstruction from government officials that often prevents the public from accessing what it is entitled to see under the Colorado Open Records Act and the Criminal Justice Records Act.
The importance of the law is clear. As the state Supreme Court affirmed in a 1983 ruling: “A free self-governing people needs full information concerning the activities of its government not only to shape its views of policy and to vote intelligently in elections, but also to compel the state, the agent of the people, to act responsibly and account for its actions.”
But Luis Toro, the executive director at Colorado Ethics Watch, a nonpartisan government watchdog group, said the state’s open-records statutes are outdated. “And what we’ve never seen,” he said in a recent interview, “is a big overhaul to reflect that we are in the digital era now.”
Missed opportunities
The 120-day legislative session that concluded May 11 missed numerous opportunities to address the issue. Of the dozen or so bills designed to increase transparency, only one survived.
The measure, Senate Bill 38, requires public financial disclosures and state audits of records from nonprofit community-centered board that manage millions of dollars for people with disabilities — 90 percent of which is taxpayer money.
But the bill — which now awaits the governor’s action — no longer includes provisions to make the records of nonprofits like Rocky Mountain Human Services available to the public.
Jeff Roberts, executive director at the Colorado Freedom of Information Coalition, said lawmakers “didn’t really do much to improve access.”
The most disappointing defeat came early in the 2016 legislative session when lawmakers defeated a measure to clarify that state and local governments must produce digital records in their native format, affirming what many believe is the existing legal requirement.
“With exceptions that are delineated in CORA … the public must be able to access, review and analyze such records to better understand governmental activities,” said state Sen. John Kefalas, a Fort Collins Democrat who sponsored Senate Bill 37. “But this process has been difficult because some custodians seem to think that the records entrusted to them belong to them and not the people.”
The federal government and at least 16 states and the District of Columbia currently have laws that guarantee a right to access records in their original digital format — for instance, a spreadsheet in an Microsoft Excel (.xls) format or a comma-separated value (.csv) file.
Many other states infer such a requirement from plain-language open records laws, according to Steve Zansberg, a prominent media law attorney and president of the Colorado Freedom of Information Coalition.
The need for access to digital formats is demonstrated by Colorado State University’s refusal to release its salary database, arguing that it complied with the state public records law by making a paper copy of the 145-page salary report available at the campus library.
Undeterred, the Coloradoan newspaper spent months digitizing the paper records to allow for simple analyses and searches — like the one that revealed the hugely uneven salary hikes.
Other examples abound. Attorney General Cynthia Coffman’s office refused a Denver Post request for a database of law enforcement officers, saying that making it public could put undercover officers at risk. The attorney general’s office declined to redact the protected names and make the remainder public, despite anecdotal evidence that officers with troubled histories were being rehired in Colorado at a risk to public safety.
An ad hoc group of stakeholders is trying to keep the conversation on digital records moving ahead of the 2017 session. It’s a good start — but the scope of work should expand to cover other problems in Colorado’s sunshine laws. The need is further justified after a recent review of sunshine laws in other states.
Improving the law
Five areas in particular deserve a deeper look for much-needed reforms:
1. Digital public records: The question of how to handle electronic records needs clarification. And a handful of other states provide a simple model to follow. In Mississippi, the law states that “a public body shall provide a copy of the record in the format requested if the public body maintains the record in that format.”
And Arkansas spells out that any citizen “may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.”
As a part of this change, state lawmakers need to clarify that the redaction of confidential information from a document does not represent the creation of a new record. At present, government agencies are over-interpreting a Colorado Supreme Court ruling in 1999 and withholding otherwise public records in a manner that violates of the spirit of the state’s open-records laws.
2. Judicial branch records: Colorado’s judicial branch is allowed to create its own policy governing public records because it exempted itself from CORA in the same 1999 case, saying it was not “an agency of the state” for purposes of the law.
The judiciary issued new rules in November that represent an improvement from earlier directives, but it still deviates from the public records law in significant places. In addition to restricting access to employee administrative files, it keeps secret the terms of contracts between the judicial branch and private vendors.
In many states, such as Florida, the courts allow greater access to records than Colorado, even while balancing a need for confidentiality of some documents. A Colorado bill to allow more access that died in the House earlier this year is a starting point.
3. Criminal justice records: The Criminal Justice Records Act grants courts and law enforcement agencies broad discretion to withhold records, stating that a record custodian “may deny the right of inspection … on the ground that disclosure to the applicant would be contrary to the public interest.”
Even though it allows disclosure of records of official actions, such as arrests or criminal charges, often access to related documents is limited and judges can impose court orders to keep them from the public.
The significant discretion granted to law enforcement agencies fuels uneven application of the law, as demonstrated by the case of Reynolds, whose mother spent months trying to get the documents in 2015. It took the intervention of open-records advocates to get Montrose County to cough up more than 400 pages and 14 computer disks.
Only a small minority of states feature such a far-reaching and discretionary restriction on criminal justice records.
4. Personnel records: The provisions in Colorado’s records law that govern access to information about government employees is often misunderstood.
The law only prohibits disclosure of home addresses, phone numbers, financial information or other information maintained because of the employer-employee relationship. Letters of reference and sexual harassment complaints are also exempt.
But, as the courts have reiterated time and again, the law allows access to employment applications and agreements, salary information, severance payments, performance ratings, disciplinary records and even expense reports.
However, government agencies often do not comply with the law, such as the resignation letters and related documents requested by 9News but denied by Adams County officials. A clarification of the law or the addition of tougher penalties for noncompliance may be necessary.
5. Retention policies: A major oversight in Colorado’s law is a retention schedule to preserve valuable state and local records in this digital age, especially given that storage of data is cheaper than ever.
Colorado law requires records custodians to create a retention policy but gives no parameters about how long records must be kept. The situation results in significant discrepancies among records custodians — particularly when it comes to e-mail records.
Todd Shepherd at the Independence Institute, a limited-government think tank in Denver, called attention to the problem in 2015 when he conducted a study of state agency policies. He found only one agency is archiving e-mail beyond 30 days.
What Shepherd recommends — and others support — is the federal “capstone” policy developed by the National Archive to identify senior level officials whose e-mails are archived for longer-term retention.
This makes sure that the most valuable public records are saved — and access is preserved.