By Jeffrey A. Roberts
CFOIC Executive Director
Like last year, court rulings dominate the Colorado Freedom of Information Coalition’s 2022 list of transparency highs and lows, with perhaps the most closely watched decision coming nearly three weeks after a shooter killed five people and wounded more than a dozen others at an LGBTQ nightclub in Colorado Springs on Nov. 19.
Responding to petitions filed by prosecutors and a media consortium that included CFOIC, an El Paso County District Court judge unsealed records of the accused killer’s 2021 arrest for allegedly terrorizing family members with a bomb threat.
The judge’s order let journalists and the public begin scrutinizing how law enforcement authorities and the judicial system handled the suspect’s previous arrest, while the fact of the sealing raised questions about a Colorado law that can hide arrest records from public view when charges have been dismissed.
State lawmakers defended the law, which is designed to help people with criminal records get jobs and housing, while Fourth Judicial District Attorney Michael Allen called on them to amend the statute so that prior arrests are automatically unsealed for those accused of new felonies, class three or higher.
In another high-profile criminal case, a judge’s ruling in September led to the release of the amended autopsy report on the 2019 death of Elijah McClain. But CFOIC president Steve Zansberg said the Adams County coroner unnecessarily prolonged disclosure of the report, which is clearly a public record under the Colorado Open Records Act.
“It is unfortunate that public officials … did nothing to clarify (the coroner’s) obligations under the law when she was first asked to release the public record on Aug. 12,” he said.
Here are other highlights and lowlights of 2022 featured on CFOIC’s blog and news feed:
Secret ballots. In October, less than a month before the 50th anniversary of voter approval of the Colorado Sunshine Law, CFOIC felt compelled to urge Democratic leaders of the General Assembly to stop violating that law through their use of a secret-ballot system to help determine whether bills with fiscal notes live or die during the legislative session.
Not only does the Colorado Open Meetings Law, which is part of the 1972 sunshine law, prohibit the use of secret ballots to adopt “any position,” the Colorado Supreme Court in 1983 held that legislative caucus meetings must be open to the public.
“The public is entitled to know which of their elected legislators favored or opposed certain measures under consideration at the Capitol, in votes that have had real-world, bill-killing consequences,” CFOIC wrote.
Serial meetings. A judge in March slapped a preliminary injunction on the four majority members of the Douglas County school board, ordering them to follow the open meetings law after they decided to fire the district’s superintendent during a series of one-on-one meetings.
“Circumventing the statute by a series of private one-on-one meetings at which public business is discussed and/or decisions reached is a violation of the purpose of the statute, not just its spirit,” Douglas County District Court Judge Jeffrey Holmes wrote in his decision.
The lawsuit brought by Bob Marshall, who won a seat in the state legislature in November’s election, is still ongoing and could lead to first-of-its-kind case law in Colorado on serial or daisy-chain meetings. Although the open meetings law permits two school board members to discuss district business in private, it becomes problematic if they relay those discussions to additional board members outside of public meetings.
“So long as communications between any two members of the board are not thereafter shared (in person, by phone, email, text, or any other means of communication) with a third member of the board — outside of a public meeting — the injunction will not be violated,” explained Zansberg, who is representing Marshall. “It’s not a terribly difficult concept to understand and to abide by.”
Teacher sick days. In May, 9NEWS anchor Kyle Clark won a lawsuit against the Douglas County School District after it refused to let him see a CORA request for the names of teachers who called in sick Feb. 3 to protest actions by majority members of the school board.
The district had claimed the CORA request was not a public record because it had been withdrawn by the requester. But Judge Holmes determined, “There is no authority of which this court is aware that permits a requester to remove a CORA request from its status as a public record by simply asking that it be withdrawn.”
The state legislature, meanwhile, passed an anti-doxxing bill — later signed into law by Gov. Jared Polis — that bars the disclosure of the specific date of a teacher’s absence from work.
A vague agenda. In April, a judge in Teller County ordered the Woodland Park school board to comply with the open meetings law by “clearly, honestly and forthrightly” listing future agenda items concerning a charter school’s application to the school district.
The board had considered a memorandum of understanding with the charter school under a “BOARD HOUSEKEEPING” agenda item. That phrase, plaintiff Erin O’Connell testified during a court hearing, “means to me more ministerial tasks … not something that would drastically change the policies or direction of a district.”
Anonymous book banners. In May, a judge in Gunnison County ruled that Colorado’s library-user privacy statute shields the identities of people who ask librarians to remove or reclassify books they find objectionable or controversial.
The editor of the Crested Butte News is appealing the decision, and an amicus brief filed by CFOIC argues that “a proper, narrow construction” of the library privacy law does not extend to a written form submitted by a member of the public “asking library officials to prevent actual library users from accessing books or other information in the library’s collection.”
Casa Bonita records. “South Park” creators Trey Parker and Matt Stone, the new owners of the famous restaurant Casa Bonita, sued the city of Lakewood in August to halt the public release of some records related to the restaurant’s renovation. Their lawsuit, which they later dropped, claimed that disclosure of building plans and security information “would cause injury to the public interest because the public has an interest in not being subjected to mass shootings.”
Sexual misconduct records. A Denver District Court judge ruled in February that redacted portions of an investigator’s report on sexual misconduct allegations against Denver school board member Auon’tai Anderson cannot be publicly disclosed because of a specific exemption in CORA.
The open records law requires the withholding of “any records of sexual harassment complaints and investigations, whether or not such records are maintained as part of a personnel file,” the judge noted. But it also “has largely shielded investigations into sexual misconduct allegations against public officials from scrutiny,” argued attorney Rachael Johnson of the Reporters Committee for Freedom of the Press in a Denver Post column.
Right to record. The Denver-based 10th Circuit Court of Appeals ruled in July that people have a First Amendment right to record police encounters. The case involved a blogger and YouTube journalist who sued a Lakewood police officer for trying to prevent the recording of a DUI stop.
Recording video is speech creation, the federal appeals court decided: “If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by simply proceeding upstream and damming the source of speech.”
Livestreaming a mass shooting. A jury in October acquitted a man charged with obstructing police while livestreaming the 2021 mass shooting at a Boulder King Soopers. “This is an important victory for free press,” said David Lane, an attorney for Dean Schiller.
Child abuse records. The 10th Circuit Court of Appeals in August struck down as unconstitutional a Colorado statute that criminalizes the public disclosure of all child abuse and neglect records. Later in the year, 9NEWS and The Colorado Sun argued in the Colorado Court of Appeals that Colorado’s Children’s Code does not prohibit the state Department of Human Services from publicly releasing statistics about child-abuse hotline calls made from licensed residential care facilities.
Prior restraint. Zansberg in April persuaded an Adams County District Court judge to lift her order preventing The Denver Gazette from publishing information reporter Julia Cardi had lawfully obtained from a court file on the death of Elijah McClain. The Colorado Attorney General’s office said the records were released inadvertently and claimed disclosure to the public would endanger grand jury secrecy and the defendants’ fair-trial rights.
In a Gazette column, Zansberg cited the U.S. Supreme Court’s 1971 Pentagon Papers ruling on prior restraint: ”That case recognized it is a fundamental breach of the First Amendment for any government official to tell the news media what it can and cannot publish, absent the most dire, certain, and immediate ‘irreparable injury’ to a state interest ‘of the highest order.’”
Paper of record. In December, the Wet Mountain Tribune in Westcliffe settled a lawsuit with Custer County commissioners whom the newspaper alleged rejected its bid to print legal notices as retribution for critical coverage of the county government. “This is us just making a stance,” said newspaper owner Jordan Hedberg. “And even though we’re a tiny little newspaper, we are going to go to the courts and the courts upheld our First Amendment rights both as an individual as myself, but also as a newspaper publication.”
Florence executive sessions. In March, the Florence City Council released the recordings of seven executive sessions after a former court clerk claimed open meetings law violations. The tapes “paint a picture of a government in distress … amid a city hall sexual harassment scandal,” KRDO reported. The entire city council soon resigned, leaving the mayor as the only elected official.
Aurora executive session. The Aurora Sentinel in October vowed to continue fighting for the recording of an executive session in which members of the Aurora City Council discussed and ended the censure process against a fellow council person. A judge ruled the city did not properly announce the closed session but later decided that a subsequent public council meeting on March 28 “cured” any open meetings law violations stemming from the March 14 executive session.
Judicial discipline. In September, an interim committee of the General Assembly proposed several ideas for overhauling Colorado’s secretive judicial discipline system, including a state constitutional amendment that would establish an independent board to handle disciplinary hearings against judges.
“The purpose of these provisions is to increase information available to (the) public about judicial discipline matters and to make the process more ‘user-friendly’ for individuals who lodge complaints,” wrote the chair and vice chair of the committee in a Denver Post column.
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