By Jeffrey A. Roberts
CFOIC Executive Director
Several key rulings in 2023 showed why courts matter so much for enforcing and interpreting Colorado’s open government laws.
Unlike some other states, Colorado has no avenue to administratively challenge wrongful denials of access to public records and illegal meetings of public bodies. Filing a lawsuit — with the promise you’ll recover attorney fees if you prevail — is the only way to compel compliance with the Colorado Open Records Act (CORA) and the Colorado Open Meetings Law (COML).
In this year’s major cases, judges mostly sided with the public’s right to know.
The most anticipated ruling may have been the June 23 decision by Denver District Court Judge Andrew Luxen against the Denver school board for engaging in “a substantial discussion of matters” not authorized by the executive sessions provision in the open meetings law.
In a lawsuit brought by six news organizations, Luxen ordered Denver Public Schools to publicly release the recording of a nearly five-hour closed-door meeting held the day after a student shot two administrators at East High School in March. The board came out of the executive session with a revised policy on school resource officers — even though the law prohibits secret decision-making by public bodies — and had no discussion in public.
On the recording school board members “worried about being blamed, about Superintendent Alex Marrero overriding their authority by returning police to schools, and about the technicalities of how to proceed,” according to Chalkbeat Colorado.
A three-judge panel of the Colorado Court of Appeals reinforced COML’s restriction on executive session decision-making in December when it reversed a district court ruling and ordered Aurora to publicly release the recording of a 2022 closed-door meeting in which city council members took a roll-call vote that ended censure proceedings against a fellow councilor.
The district court “committed clear error” in finding that the roll-call vote was not a formal action in violation of the open meetings law, says the published (precedent-setting) Court of Appeals opinion. The city council “can’t conduct a (roll) call to end an investigation of censure charges during an executive session.” Siding with the Aurora Sentinel, which brought the lawsuit, the appellate panel also found that the council failed to properly announce the executive session by not identifying any “detail” of the topic to be discussed outside of public view, as required by the law.
A week after the appeals court ruling in the Aurora case, a district court judge in Garfield County held that the Glenwood Springs City Council violated the open meetings law when it took “formal action” in an August executive session regarding the city manager’s employment contract. She ordered the meeting recording released to the public.
Here are other highlights and lowlights of 2023 featured on the blog and news feed of the Colorado Freedom of Information Coalition:
Red Rocks text messages. In a lawsuit brought by 9NEWS, Denver city attorneys argued that text messages sent and received by city officials about a severe June hailstorm at Red Rocks Amphitheater didn’t fit CORA’s definition of “public records” because cellphone messages aren’t kept by the city. But Denver District Court Judge Stephanie Scoville ruled in October that the “plain language” of CORA is broad enough to encompass text messages between city employees that concern city business.
One of the officials used her personal phone, the other a phone provided to him by the city. The texts, later released to reporter Steve Staeger, included exchanges in which a police sergeant insisted injuries to concertgoers were “very minor” and an official joked about concertgoers wearing helmets. Medics treated more than 100 people that night and seven were taken to a hospital.
Disappearing messages. In a consent decree announced Sept. 1, leaders of the Colorado House agreed to bar representatives from setting their devices to auto-delete any messages exchanged with other representatives. The settlement came in a lawsuit filed by Democratic Reps. Elisabeth Epps of Denver and Bob Marshall of Highlands Ranch, in which they accused their own caucus and Republican members of violating the open meetings law by using ephemeral messaging apps such as Signal to conduct public business and by failing to properly notice caucus meetings. (House Speaker Julie McCluskie later removed Epps and Marshall from the House Judiciary Committee.)
A CFOIC report published in July examines the implications of public officials using Signal, Confide and other ephemeral messaging apps for CORA, COML and records-retention laws and policies.
“Open government laws are intended to ensure an informed citizenry, but it is impossible to achieve that purpose when public officials evade disclosure requirements by the use of encrypted and disappearing messaging apps,” the report says.
Quadratic voting. The conservative Public Trust Institute sued Democratic legislators in July, alleging that their use of an anonymous online survey to prioritize bills violates the open meetings law and their refusal to disclose individual voting records from the “quadratic” polling system violates CORA.
Denver District Court Judge David Goldberg held a hearing in the case earlier this month and “appeared skeptical of some of the arguments the legislature is using to defend the practice,” according to KUNC. “Aren’t you providing a mechanism, a cloak, under which these legislators can hide to avoid letting the public know how strong they feel about matters of public importance?” Goldberg said as he questioned an attorney for lawmakers.
A ruling is expected soon.
Peace officers database. The Court of Appeals in April affirmed a judge’s ruling that keeps the state’s database of certified and decertified law enforcement officers confidential. An appellate panel decided that Colorado’s Peace Officer Standards and Training (POST) board is subject to the Colorado Criminal Justice Records Act (CCJRA) rather than CORA because “it collects and stores arrest and criminal records information when it revokes a peace officer’s certification.”
That legal distinction matters because CCJRA lets criminal justice agencies deny requests for many records after conducting a balancing-of-interests test. If CORA had governed the release of POST records, disclosure of the database would have been subject to a provision entitling requesters to copies of public records in “sortable” and “searchable” formats minus any confidential fields of information.
The Gazette and the Chicago-based Invisible Institute have asked the Colorado Supreme Court to review and reverse the ruling, arguing it “creates a gaping hole” in CORA and broadens the scope of CCJRA “beyond recognition.” The ruling also makes Colorado one of just 15 states that doesn’t release comprehensive data on law enforcement discipline. Colorado does publish some data about problem officers, but it is “beset with glitches,” as well as inaccuracies and omissions, a Colorado News Collaborative project found.
Serial meetings. In June, a Douglas County District Court judge finalized his decision that four members of the Douglas County school board violated the open meetings law by discussing the job performance of then-Superintendent Corey Wise in a series of one-on-one meetings in January 2022 — outside of public view — and deciding to “end Wise’s involvement with the district either by resignation or by termination.”
While the ruling isn’t binding on other government boards, councils and commissions, it could persuade judges who examine similar cases concerning the legality of serial or daisy-chain meetings under COML.
Prior restraint. Earlier this month, a reporter for BusinessDen defied a judge’s order to return suppressed court documents that he obtained via a records request and to permanently delete all electronic copies of them, contending the order violates both the U.S. and Colorado constitutions. The judge has yet to rule on the news organization’s motion to vacate her order.
CORA changes. Once again, Colorado lawmakers declined to tackle the problem of exorbitant CORA fees, but they did make some small but important changes to the open records law. For one, governments no longer can charge a per-page fee for records provided in digital formats such as PDFs. Another change: Records custodians must let requesters pay for public records with credit cards or via electronic payments if they let the public pay for other services or products electronically.
Executive sessions. Gov. Jared Polis vetoed what was left of a bill that as introduced, CFOIC contended, would have diminished local government transparency and created a risky financial barrier for anyone interested in filing an accountability lawsuit over whether a local public body properly announced a closed-door meeting. Before the veto, CFOIC helped persuade lawmakers to rewrite the measure, leaving only a provision affecting pro se litigants such as a Pagosa Springs lawyer who has represented himself in dozens of open-government lawsuits, often settling with school districts and other local governments for amounts of about $3,000.
Social media blocking. Polis in June signed into law a bill that lets elected officials in Colorado block anyone from their private social media accounts for “any reason,” although he urged state lawmakers to monitor two cases related to the issue pending before the U.S. Supreme Court. In October, the justices heard arguments on the cases, one from Michigan and other California, and a decision is expected by summer.
Courts livestreaming. Polis in June also signed into law a bill that requires Colorado courts to livestream open criminal court proceedings on Webex or another videoconferencing platform, something the judicial branch started doing during the COVID-19 pandemic. The measure lets a judge limit livestreaming after finding it would likely compromise a person’s safety, a defendant’s right to a fair trial or a victim’s rights and “there is no less restrictive alternative that preserves the public interest in remote observation while mitigating the identified risk.”
The judicial branch created a website of proceedings that are livestreamed.
Book banning. The Court of Appeals in October upheld a district court’s ruling that Colorado’s library-user privacy statute shields the identities of people who want public library books banned or reclassified. The opinion is based on the “plain language” meaning of the term “service” in the law, which prohibits libraries from disclosing records or information that identify a person “as having requested or obtained specific materials or service or as otherwise having used the library.”
School administrator records. The Denver Gazette is appealing a Denver District Court judge’s April ruling against the disclosure of discipline records of Denver Public Schools administrators. The judge found that school principals and other administrators “understand and expect” that their discipline records are private because of “established policies and practices” and a state statute shielding the evaluation records of licensed educators.
Notarized requests. The Weld County Sheriff’s Office mandated that anyone asking for public records must get their request form notarized, even though the criminal justice records act doesn’t require it. “I don’t see how they’re authorized to do that,” CFOIC’s executive director told The Denver Post in September. “I don’t see the point of it other than to make someone jump through another hoop to get public records.”
Dacono city manager. The city council of Dacono, in Weld County, suddenly fired the city manager with no explanation during a February meeting — less than an hour after the mayor presented him with an award recognizing his 20 years of service. A state investigation of the firing documented violations of the open meetings law, and voters in June recalled two councilmembers embroiled in the controversy.
Boebert surveillance video. Perhaps the most widely shared public records-related story of the year in Colorado concerned the behavior of Congresswoman Lauren Boebert during a September performance of “Beetlejuice” at Denver’s Buell Theatre. Via a CORA request, 9NEWS reporter Marshall Zelinger obtained surveillance video from the city-run facility that supported claims Boebert had been vaping and causing a disturbance before she and her date were escorted out of the performance by theater staff. The footage contradicted a statement from Boebert’s campaign manager to The Denver Post that she hadn’t been vaping, and it revealed more than vaping.
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