Lawsuit: Boulder council member’s private emails about proposed ballot initiative are public records

By Jeffrey A. Roberts
CFOIC Executive Director

Boulder Beat has asked a judge to decide whether a Boulder City Council member’s personal email exchanges with two nonprofits are public records subject to disclosure under the Colorado Open Records Act.

In a lawsuit filed last week in Boulder County District Court, the online news organization alleges that the emails — sent and received by Mayor Pro Tem Bob Yates using his personal account — contain “a demonstrable connection” to government business, despite the city’s claim that Yates was expressing only his personal views. The records, requested by reporter Shay Castle, pertain to a possible fall ballot initiative that would change Boulder’s limits on unrelated people living together. 

“An elected official’s use of one’s own private email account to conduct public business, and perhaps disclaiming one’s official capacity, while nonetheless acting within that capacity, cannot circumvent the transparency requirements of CORA,” argues the complaint, submitted for Boulder Beat by attorney Eric Maxfield.

Yates gave Castle his email exchanges with the Emergency Family Assistance Association (EFAA) after Boulder Beat filed a notice of intent to sue the city. But Castle has not received a requested email exchange between Yates and another nonprofit, Attention Homes, regarding the proposed Bedrooms are for People initiative.

The Colorado Supreme Court decided last week to consider whether the controversial proposal should make the ballot. Proponents of the measure appealed a district court ruling that the city does not have to put the question on the ballot, despite having provided the Bedrooms are for People campaign with incorrect guidance on signature and deadline requirements.

The emails requested by Castle express Yates’ concerns with the initiative, the lawsuit asserts, and are public records because their “content reflects various and significant public business, including the Mayor Pro Tem’s reference to the City Council agenda and exhortation to (Emergency Family Assistance Association) to work with the City Council.”

In the July 11 email exchange disclosed by Yates, he wrote to the association’s executive director:  “As you may have seen, it now appears that the city attorney and city clerk may not be in a position to certify the Bedrooms charter amendment initiative for the ballot. City council will be discussing this and possible alternatives at its meeting on July 21. I think this will be a good opportunity for EFAA to start working collaboratively with city council on the kind of occupancy changes that EFAA’s clients need.”

The July 11 email “provides substantial reason to conclude that the undisclosed email(s) includes public business …,” the lawsuit says.

The definition of public records in CORA includes the “correspondence of elected officials,” except for correspondence that lacks “a demonstrable connection to the exercise of functions required or authorized by law or administrative rule and does not involve the receipt or expenditure of public funds.”

The Boulder city attorney’s office has maintained that Yates’ email exchanges with the two nonprofits “are not public records” because, in its view, the messages have no “demonstrable connection” to government functions and do not involve the expenditure or receipt of public funds.

In email to a Boulder resident who also requested the records, City Attorney Tom Carr wrote that Yates’ messages were “in the nature of political advocacy. He makes it clear that he is expressing only his personal views … All of this was done using his personal account, which is consistent with city policy of not using official resources for political activity.”

Boulder Beat’s lawsuit asks a judge to review the records to “determine if the documents were appropriately withheld of if they are public records required to be opened for public inspection.”

“Simply because an email message was produced by an elected official on a personal email with a statement that it was sent in his personal capacity does not take it out of the ambit of ‘public record.’ Rather, it is critical to ask what the communication includes, rather than how it was produced,” the complaint states.

The lawsuit asks the court to “determine that an elected official may not manufacture a safe harbor from the category of ‘public record’ for emails that conduct public business by using a personal email address and disclaiming the official role.”

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