Digital records bill tops open-government accomplishments of 2017 legislative session

By Jeffrey A. Roberts
CFOIC Executive Director

For Coloradans concerned about access to government information, the 2017 legislative session will be judged by what occurred on the 120th and final day.

That’s when House members passed a significant open-records bill that had been completely rewritten over the previous 48 hours to appease both records requesters and state-and-local government entities. Then it was up to the Senate to accept the stripped-down House version, which lacked some anti-disclosure amendments that senators had insisted upon earlier in the session.

Turns out that wasn’t a problem. The Senate unanimously accepted the House version of Senate Bill 17-040, sending a long-overdue update of the Colorado Open Records Act (CORA) to the desk of Gov. John Hickenlooper.

The new CORA provisions, assuming the governor OKs them, will clarify the public’s right to obtain digital public records in useful file formats that allow for searching or sorting.

When you request public records kept in a “sortable” format, you’ll be entitled to the records in a format – like a comma-separated-values (CSV) file – that can easily be imported into a spreadsheet. CORA won’t permit a records custodian to give you a PDF or pages printed from that spreadsheet.

For “searchable” records such as emails, you should expect to get the records in a searchable format instead of an image-only PDF.

SB 17-040, sponsored by Sen. John Kefalas, D-Fort Collins, isn’t an ideal solution. The final version, for instance, isn’t specific about how much governments can charge to process different types of requests for digital records. But the bill will establish a consistent, statewide policy regarding the format of such records.

Here’s how the legislature handled some other freedom-of-information and transparency matters:

CORA disputes
Hickenlooper signed House Bill 17-1177, described by sponsoring Rep. Cole Wist as requiring a “cooling-off period” when open-records disputes reach the point where litigation is being considered.

Under the new law, someone who is denied records under CORA is required to wait 14 days to challenge the denial in court. During that time, the records custodian must speak with the requester in person or by phone “to determine if the dispute may be resolved” without litigation.

However, a requester with “an expedited need” for records – like a journalist on a deadline – can opt out, keeping CORA’s three-day notice of intent to sue in effect.

“The primary purpose here is to facilitate conversations,” said Wist, a Centennial Republican.

The impact of the legislation is difficult to predict. CORA lawsuits aren’t common, and it’s assumed that most people who are denied public records give up rather than take on the expense and effort of going to court, the only way to challenge a denial in Colorado.

Wage-theft records
The governor also signed House Bill 17-1021, opening state Division of Labor records on wage-law violations. This can include paying below minimum wage, failing to pay overtime or not reimbursing employees for expenses.

Under the state’s interpretation of a century-old law, whether an employer has defrauded its workers has been considered a “trade secret,” even after an investigation is over and a citation has been issued. The new law makes citation and assessment information available for inspection under CORA after an employer has exhausted all appeals.

“I wrote and sponsored this legislation because I believe cheating someone out of an honest day’s pay is wrong, and the public deserves to know when an employer is caught committing wage theft,” said Rep. Jessie Danielson, D-Wheat Ridge, who tried a similar bill last session.

Judicial branch records
For the second straight year, a House committee rejected Rep. Polly Lawrence’s attempt to make administrative records of Colorado’s judicial branch subject to CORA.

Opponents of House Bill 17-1029 said it would violate a provision in the Colorado Constitution giving the Colorado Supreme Court authority to make “rules and regulations.” The Supreme Court did just that in 2015, enacting rules of access to the judiciary’s administrative records that are similar to CORA in many ways. A key difference involves the treatment of internal investigative files on judicial branch employees.

“It’s the legislature’s job to write laws. It’s not the judicial branch’s charge to write laws,” said Lawrence, R-Roxborough Park.

The CORA modernization bill, as it passed the Senate, also included an attempt to make the judicial branch subject to the open-records law. But that provision isn’t in the final version.

Juvenile crime records
House Bill 17-1204, as introduced and passed by the House, included a provision that would have changed the public availability of arrest records when juveniles are charged as adults. The language required that a judge order a juvenile be charged as an adult to trigger the release of records. Now, records are made public when prosecutors decide to “direct file” youths in adult court.

The Colorado Press Association and the Colorado Broadcasters Association persuaded the Senate to keep the direct-file disclosure rule intact. However, the bill passed the legislature with another provision that limits the public availability of identifying information in juvenile cases involving serious crimes that would constitute felonies if committed by an adult or crimes of violence involving firearms.

Public information in those cases “shall not include the juvenile’s name, birth date, or photograph,” the measure states.

Unaffiliated voters
When Propositions 107 and 108 were approved last fall, there wasn’t much talk about whether an unaffiliated voter’s choice of party ballot would be a public record under the state’s new primary election system.

Lawmakers resolved any question about that in Senate Bill 17-305, which sets some rules for presidential primaries and the way unaffiliated voters will participate in Democratic and Republican primaries.

Credit: Dwight Burdette

The bill clarifies that county clerks must record “which political party’s ballot” an unaffiliated elector casts. The information, added to the statewide voter registration system, will be subject to public inspection.

“If you voted, that’s a public record. And to establish what election you voted in is an appropriate part of the public record,” said Sen. Kevin Lundberg, R-Berthoud. “Without that, proper auditing of an election is greatly hobbled.”

Opponents of the bill worry that some unaffiliated voters will choose not to participate in primaries because their choice of ballot will be public.

Political “dark money”
Two bills to limit “dark money” in Colorado political campaigns died in a Republican-controlled Senate committee after passing the Democratic-controlled House with no Republican support.

House Bill 17-1261 would have required that anyone spending $1,000 or more annually on electioneering communications include “paid for” disclosures in those ads. House Bill 17-1262 would have closed a reporting gap, making spending information on electioneering communications available throughout a campaign season.

“Voters have a right to know this information about who is trying to sway their vote,” testified Peg Perl, senior counsel for Colorado Ethics Watch.

But Mike Krause, director of public affairs for the Independence Institute, said the bills went “too far” by limiting a person’s First Amendment right to comment on a candidate.

Presidential tax returns
Party lines also divided state lawmakers on an unsuccessful Democratic-sponsored measure, House Bill 17-1328, that would have required presidential and vice presidential candidates to disclose at least five years of personal tax returns to qualify for the general election ballot in Colorado.

Modeled after similar bills in other states, it came in response to President Donald Trump’s refusal to let the public see his returns, breaking a 40-year tradition among major-party presidential candidates.

Republican legislators said the matter shouldn’t be decided at the state level. “I believe this is a federal issue,” said Rep. Susan Beckman, R-Littleton.

Oil and gas flowlines
In the wake of last month’s fatal house explosion in Firestone, two Democratic representatives introduced House Bill 17-1372, which would have required the mapping of Colorado’s oil and gas flowlines. The map was to be published in a searchable format on the website of the Colorado Oil and Gas Conservation Commission.

But the measure, introduced at the end of the session, died after House Republicans filibustered the legislation and ran out the clock. Wist called the bill a “knee-jerk” reaction that would complicate Hickenlooper’s order requiring operators to disclose the endpoints of oil and gas flowlines.

Campus free speech
Members of both parties came together in support of Senate Bill 17-062, which bans “free speech zones” on public university campuses. The new law allows speaking, picketing and carrying signs anywhere on campus, although universities still can set “reasonable” restrictions so that demonstrations don’t interfere with classes.

“I don’t think people should be quarantined for free speech,” said Sen. Tim Neville, R-Littleton, one of the bill’s sponsors.

Ballot selfies
Hickenlooper signed House Bill 17-1014, which lets you take a selfie with your ballot. The legislation eliminated a long-standing misdemeanor for disclosing the contents of a completed ballot. The ban was meant to prevent vote buying and voter intimidation.

“Our First Amendment was written largely for the purpose of political speech,” said Sen. Owen Hill, R-Colorado Springs, who pushed for the new law.

Fraud hotline
House Bill 17-1223, which awaits the governor’s signature, authorizes the state auditor to investigate tips about embezzlement, extortion, bribery and other state government fraud. Auditor Dianne Ray already runs a fraud hotline, but her office has lacked statutory power to examine books, accounts, vouchers and other records of state agencies without conducting a full audit.

Under the bill, law enforcement authorities, a local district attorney or the state attorney general must be notified if an investigation uncovers evidence of illegal transactions or the misuse or embezzlement of public funds or property.

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