By Jeffrey A. Roberts
CFOIC Executive Director
Gov. Jared Polis’ signature on Senate Bill 23-286 Tuesday will change the Colorado Open Records Act in some small but important ways when the measure takes effect in early August.
Here are some things to know about what the CORA bill does — and does not do.
Per-page fees. Records custodians can no longer charge a per-page fee for records provided in digital formats such as PDFs. The Colorado Freedom of Information Coalition has long maintained that the maximum 25-cents-per-page fee authorized in CORA is for “standard page” paper copies, not the creation of PDFs. Still, some government entities have insisted on charging 25 cents per page plus hourly research-and-retrieval fees for digital copies.
Research-and-retrieval fees. Despite efforts by CFOIC and the Colorado Press Association to get lawmakers to address the often-high cost of obtaining public records in Colorado, SB 23-286 does not affect the fees government entities are allowed to charge for processing records requests, including the time it takes to pull, review and redact records.
CORA currently lets records custodians charge up to $33.58/hour after the first hour, which must be provided for free. When that rate is multiplied by many hours, public records can get expensive — and are sometimes unaffordable — for journalists and the public. Because of inflation, the maximum research-and-retrieval rate could rise to $40 or more when Legislative Council recalculates it on July 1, 2024, as the law requires.
Showing ID. No longer can government entities such as Elbert County require CORA requesters to show a driver’s license or another form of identification — unless the requested records are confidential under C.R.S. § 24-72-204(3.5) or available only to a “person in interest.”
This provision does not affect law enforcement agencies, many of which make requesters show a driver’s license to obtain records open for inspection under the Colorado Criminal Justice Records Act. CCJRA says nothing about showing ID for public records, but it requires requesters to sign a statement affirming they will not use criminal justice records “for the direct solicitation of business or pecuniary gain.”
Paying with a credit card. 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. Records custodians can tack on any service charges or fees imposed by the payment processing company. This provision does not apply to criminal justice agencies or the courts, many of which do not accept electronic payments for records.
Sexual harassment investigations. The public will get to see records of sexual harassment complaints made against elected officials — and the results of any investigation — “if the investigation concludes that the elected official is culpable.” The identities of accusers, victims and witnesses must be redacted from the records.
Email retention. By Jan. 1, 2024, each state lawmaker, the governor’s office and each state agency and institution must submit a report to Legislative Council outlining their email retention policy. In a 2019 report, CFOIC recommended that Colorado’s email retention laws and policies be clarified and strengthened.
Transmitting digital public records. Records custodians must transmit digital public records to requesters by email “or by another mutually-agreed-upon transmission method” if a file is too big to send via email. A records custodian may not convert a digital public record into a non-searchable format before transmission.
Email addresses, phone numbers, home addresses. Upon a finding that disclosure would be “contrary to the public interest,” records custodians are allowed to withhold email addresses, telephone numbers and home addresses provided by a person to an elected official or an agency, institution or political subdivision of the state.
CORA previously allowed records custodians to withhold only emails addresses under this discretionary exception in the law.
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