If someone files an open records request and is cited for $20,000, are the records they are looking for really publicly available? What if someone from Durango files a claim and is told to submit payment in person in Denver or by fax?
Such situations make it difficult to obtain records and information that, under the Colorado Open Records Act (CORA), are supposed to be publicly available. High fees and outdated technology generally act as obstacles, but so do lax laws that give sections of government the flexibility to quickly remove certain content and broad editorial discretion.
State lawmakers, Democrats and Republicans, seem to generally agree that while CORA’s purpose is to facilitate public access to government, the law has failed. And for years they threatened comprehensive reform.
Officials promised they would get there in 2020, after a Denver Post investigation found a big inconsistency between state departments’ email retention policies. Then the pandemic set in and the issue was shelved until 2021 when, again, no bills emerged.
They came pretty close this year. Sen. Chris Hansen, a Democrat from Denver, has been working for months on a bill he planned to sponsor with Republican Weld County Sen. John Cooke. On Thursday, the 100th day of the 120-day legislative session, Hansen and his main lobbying ally, the Colorado Press Association, said the bill had been defeated at this time.
“I went into this process by identifying the specific issues that we wanted to address, but every time we were digging into a problem, you were bringing up additional complications, and that really meant there was a huge amount of back-and-forth. comes,” Hansen said. “We try to find the right balance, but when you move a little bit it can have really big ripple effects.”
The bill he and Cooke were about to introduce had been significantly scaled down from its original form, but still proposed several substantial changes. He would have :
- Require records custodians to provide itemized receipts – including the number of hours spent on the request and a description of the work process – to people requesting records
- Removal of per-page charges for electronic records
- Required records should be returned in searchable digital formats where possible
- Bringing Colorado’s Criminal Justice Records Act into compliance, on some fronts, with CORA; among other inconsistencies, custodians of CCJRA records do not need to provide a response to a request within a specified time frame
- Obliged the State to convene a working group to define new rules for the retention of files, in particular concerning e-mails
This list of changes would have been the biggest change to open records law in years in Colorado, but it still wouldn’t have solved one of the biggest barriers to accessing records: cost.
Governments can charge a maximum of $33.58 per hour of work to respond to a request for records. (This goes into effect after the first hour, which is free.) This is a rate set to inflation, and is expected to increase again in 2024. This means that even a minor request requiring a few hours of work can be prohibitively expensive for anyone on a budget, and the public is unsure whether a records custodian really needs as much time as they claim. If the custodian were motivated to discourage a request, they could claim that a project takes twice as long – and therefore twice as expensive – as it actually is.
“It may sound cynical, but it can happen that way,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition and advocate for open government. “The problem is that we just don’t know, from the claimant’s perspective, if it really takes that long, if you’re paying for an agency’s disorganization. This is where an itemized receipt will come in handy, I think.
In lobbying for the bill, the Colorado Press Association found the itemized receipt requirement a tough sell, CEO Tim Regan-Porter said. He said the requirement for a task force to establish new rules for uniform record retention was also a sticking point before the bill was shelved.
“We encountered some opposition,” he said, “and to move the bill forward, we would have had to modify the bill in a way that was not acceptable to us.”
He, like Hansen, hopes this year’s process has laid the foundation for success next year. But lawmakers have already said so.
“The perfect policy is still on the horizon,” said Senator Paul Lundeen, a Monument Republican.
But that perfect policy is hard to grasp, he said, because of how thorny open case issues become once you dig beyond the surface. Lundeen said the legislature must work to allow the public access “as much of the people’s business as possible.”
“Then you run into security and privacy issues,” Lundeen said.
He and many others in government are concerned about the “weaponization” of case laws by people seeking information they can use in prosecutions or political campaigns. Last summer, Lundeen spent three-day parties scouring his own calendar to meet a demand he believes was nothing more than a ‘political witch hunt’. Even the legislature’s most ardent supporters of CORA reform say they want to be very careful not to open the door to more of this.
“It should be a tool for government transparency, not a tool for abusing or subverting a system for negative reasons,” said Sen. Kerry Donovan, a Vail Democrat.
Donovan plans to push for the legislature to convene an interim committee on CORA after this session ends in May. She wants this committee to review the open case policy and propose changes before the 2023 session.
It’s unclear, she said, if the legislature can work to make public records truly public without inviting more requests that they’re trying to limit.
“I don’t know, but we have to try,” Donovan said. “Because I don’t think CORA is working right now, and it has to.”