By Jeffrey A. Roberts
CFOIC Executive Director
Coloradans in 2024 lost ground in the never-ending battle for access to government information.
Early in the year, the General Assembly exempted itself from major portions of the 52-year-old citizen-initiated Colorado Open Meetings Law. By summer, maximum fees for processing Colorado Open Records Act requests had jumped 23 percent. And at year’s end, high-court rulings closed the disciplinary records of school administrators and thwarted journalists’ hopes of once again obtaining the state’s database of law enforcement officers.
Looking back at the past 12 months, there weren’t a lot of wins for the public’s right to know.
The enactment of Senate Bill 24-157 happened, ironically, during Sunshine Week in March, the annual celebration of the open-government laws. The leadership-sponsored measure, quickly signed into law by Gov. Jared Polis, narrows the definition of “public business” as it applies to the legislature and lets lawmakers communicate by email and text message without having to worry about violating the open meetings law, which is supposed to ensure that “the formation of public policy is public business and may not be conducted in secret.”
The bill came not long after legislators lost a lawsuit challenging their use of an anonymous private survey to prioritize bills impacting the state budget and settled another lawsuit over their use of disappearing messaging apps. Senate President Steve Fenberg said it was needed to “create clarity, to codify what is essentially current guidance that we already operate under and to remove gray areas so that everyone has a shared understanding of how to follow the law.”
He also insisted “the purpose of the bill was never to reduce transparency in any way.” But majority Democrats in both chambers used the new definition of public business to exclude reporters from caucus meetings before an August special session on property taxes.
The CORA fees hike on July 1 happened automatically.
Several government entities quickly adopted the new maximum hourly research-and-retrieval rate of $41.37, which was triggered by an inflation factor built into the law. The Colorado Freedom of Information Coalition has for years tried to interest legislators in reevaluating CORA’s fee provision, which can result in government entities charging requesters hundreds or thousands of dollars for public records.
By the end of the year, at least 290 state agencies, municipalities, counties, special districts, school districts and public universities had raised their CORA fee rates from the previous maximum of $33.58 an hour.
The Colorado Court of Appeals’ ruling on school administrators’ disciplinary records came in November in case brought by The Denver Gazette against Denver Public Schools. DPS had rejected reporter David Migoya’s request for memos about the conduct of principals and other administrators. The Denver School Leaders Association intervened in the lawsuit and successfully argued that a statute separate from CORA protects the confidentiality of educator evaluations and all documents “used in preparing” those reports.
The legislature this past session expanded that educator confidentiality law to include other types of public-school educators who are evaluated, including teachers, principals, administrators, special services providers and education support professionals. In committee testimony, CFOIC voiced concerns about cutting off public access to the disciplinary records of educators while similar records for other types of public employees are presumed to be open.
The Colorado Supreme Court’s Dec. 23 ruling on the Peace Officer Standards and Training (POST) database was more disappointing than a setback from the status quo (although previous versions had been released to journalists). In a case brought by The Gazette and the Invisible Institute, the justices decided the POST board is a criminal justice agency with discretion under the Colorado Criminal Justice Records Act to withhold its licensing database of law enforcement officers.
Here are other highlights and lowlights of 2024 featured on CFOIC’s blog and news feed:
Child autopsies. Starting Jan. 1, journalists and the public no longer will have access to most autopsy reports on the deaths of children in Colorado but limited information from those reports will be available. Under House Bill 24-1244, promoted by county coroners and victims’ families, an autopsy report prepared in connection with the death of a minor “is not a public record” under CORA. However, coroners must release information including cause of death; time, place and manner of death; and the victim’s name, age and gender.
“Abuse” of CORA. A bill aimed at curbing what its sponsor called the “abuse” of CORA died in the waning days of the legislative session, but a similar effort is expected in 2025. The introduced version of House Bill 24-1296 not only lengthened CORA response times but also allowed records custodians to label certain annoying or harassing requesters as “vexatious” and bar them from obtaining public records for 30 working days. It also limited public inspection of government employee calendars and included a broad new CORA exemption allowing the withholding of “any record containing information that, if disclosed, would invade another individual’s personal privacy.”
Elections records. At the urging of county clerks, the legislature lengthened the CORA response period for “election-related” records during election seasons. In a signing statement, Polis said the extended deadlines in Senate Bill 24-210 “defend against open records requests specifically intended to overload election officials and make conducting an election more challenging while still preserving open records access for legitimate requests.”
Body-cam footage fees. The Boulder police department is not allowed to charge thousands of dollars in fees for body-worn camera footage requested by the public under Colorado’s 2020 Law Enforcement Integrity Act, a judge ruled. Yellow Scene Magazine and the daughter of Jeanette Alatorre, who was shot and killed by Boulder officers in 2023, had sued the city over the department’s insistence that they pay $2,857.50 to obtain video of the shooting.
Standing to sue. A Pagosa Springs attorney has standing to sue the Elizabeth school board for alleged open meetings law violations even though he lives 300 miles away, the Colorado Court of Appeals ruled. “While the School District’s frustration is clear, the provisions of the OML demonstrate that the General Assembly intended a broad right to a transparent government for everyone in Colorado,” a three-judge appellate panel wrote.
Litigants’ use of CORA. The Colorado Supreme Court affirmed that people who sue state and local government entities are still entitled to use CORA to get public records from those entities. Chief Justice Monica Márquez expressed “grave concern” with the ruling, writing that it “needlessly undermines Colorado’s constitutional separation of powers and distorts the litigation process for public entities across the state.”
Reporter barred. The Colorado Republican Party booted veteran Colorado Sun journalist Sandra Fish from its state assembly in April because GOP Chairman Dave Williams found her “current reporting to be very unfair.” Fish had written news stories about the party’s financial struggles and Williams’ use of his party position to attack his opponent during a congressional primary.
Caring for Denver. Colorado Public Radio reported on a glaring lack of transparency in the way a nonprofit manages $45 million collected annually by a Denver sales tax for mental health and drug treatment programs. “But while Caring for Denver is fully funded by taxpayers, the organization declined to produce many of its own records requested by CPR News,” the story says.
“None of your concern.” Asked in July why Joel Fitzgerald, the Regional Transportation District’s police chief, had been placed on leave, RTD’s CEO Debra Johnson told reporters, “That is none of your concern.” A termination letter, finally released in November after Fitzgerald sued RTD, alleged ethical violations.
Newspapers stolen. In January, someone stole hundreds of copies of the Ouray County Plaindealer from vending racks across the county just hours after the newspaper published a story on a sexual assault allegedly committed by three teenagers at the home of the Ouray police chief. The pilfered papers made national and international news with an Associated Press version appearing online in the Borneo Bulletin.
Excessive redactions. CFOIC helped the Plaindealer successfully push back against Ouray’s release of heavily blacked out copies of records concerning excessive-force allegations against police officers. The newspaper eventually published the redacted and less-redacted documents side by side. In August, Plaindealer co-publishers Erin McIntyre and Mike Wiggins received CFOIC’s Jean Otto Friend of Freedom Award for their “dogged and dog-inspired” reporting.
Still writing checks. Journalists lamented that, a quarter of the way into the 21st century, some government entities still made them write paper checks to pay for public records. A 2023 CORA amendment seemingly addressed this issue, but some records custodians say they still aren’t equipped for it or they point to a loophole in the law.
Public comment. Several boards, commissions and councils around the state struggled to deal with offensive comments made by speakers during meetings without violating anyone’s First Amendment rights. In September, the Aurora City Council did away with remote public input after a caller delivered a racist and antisemitic tirade.
Book banning forms. The Crested Butte News lost its appeal over “request for reconsideration” forms, which are filled out by people who want library books removed from circulation or reclassified on library shelves. But the legislature made them open records under CORA in Senate Bill 24-216.
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