By Jeffrey A. Roberts
CFOIC Executive Director
In a year that featured plenty of freedom-of-information lowlights, Colorado lawmakers in 2017 provided a welcome ray of sunshine – a helpful new tool in the never-ending quest for government transparency.
The passage and signing of Senate Bill 17-040, which modernized the Colorado Open Records Act (CORA), is already making it easier for Coloradans to obtain copies of digital public records in useful file formats. No more printouts or unwieldy PDFs when you request records kept in spreadsheets. No more paper copies or static PDFs when you request “searchable” records.
“Having access to records in these formats enables citizens to search and sort government data to make sense of it and to analyze it in ways that government offices might not have done previously, wrote Steve Zansberg, president of the Colorado Freedom of Information Coalition, in the Fort Collins Coloradoan. “… This huge advance in government transparency certainly deserves celebration.”
SB 17-040 was a great way to mark the 30th anniversary of CFOIC, which worked with government officials, legislators and other pro-transparency groups to develop and promote the CORA changes. The legislation was one of many topics featured on CFOIC’s blog and news feed in 2017.
Here are some others:
Wage-theft secrecy. On her second try, Rep. Jessie Danielson, D-Wheat Ridge, successfully changed a 100-year-old statute that let the state treat wage-law violations as confidential “trade secrets.” It is no longer illegal for the state Department of Labor and Employment to disclose whether an employer is found to have defrauded workers. The agency started naming companies over the summer.
Top cops not prosecuted. Denver District Attorney Beth McCann declined to pursue misdemeanor criminal charges against Denver Police Chief Robert White or Deputy Chief Matt Murray for alleged CORA violations involving a letter from the former DA about a controversial arrest. McCann said the police union’s open records request for the letter was “handled carelessly” by White and Murray.
A judge later rejected the union’s request for an independent prosecutor in the case, which also is the subject of an independent investigation to determine whether Murray violated department policies in denying having possession of the letter.
A $20,000 bill for emails. Photo radar foe Paul Houston was stunned to see the five-figure estimate he received from the Denver suburb of Sheridan in response to his CORA request for the town clerk’s emails from the previous seven months.
Sheridan wanted him to pay $19,740 for the search with a $6,750 deposit due upfront. The reason? The clerk deletes most of her emails and the town’s backup recovery system isn’t designed for email retention. “If they can get away with that, we don’t have an open records act in Colorado,” Houston said. “It’s a joke.”
A $2,254 bill for citations. The Gilpin County court system put up significant cost barriers when FOX31 investigated the Colorado Division of Gaming’s practice of charging casino customers with crimes for playing small unused credits left on slot machines. In response to producer Chris Koeberl’s request for copies of 161 citations, the court said it needed more than 80 hours to compile and redact the two-sided records, or roughly 30 minutes per citation.
Liquor store vs. liquor store. An unusual open records battle pitted Wheat Ridge liquor giant Applejack Wine & Spirits against Bruce Dierking, co-owner of Hazel’s Beverage World in Boulder. Applejack sued Dierking, claiming that the Wheat Ridge city clerk’s office mistakenly gave him Applejack licensing records “filled with highly sensitive personal and commercial information” protected from disclosure under CORA.
Applejack initially won a temporary restraining order, requiring Dierking to give all of the documents to the court and “make no use” of the information contained within them. The parties eventually agreed to a confidential settlement, and Dierking said he was “extremely pleased” by the outcome. “I have these very interesting documents that have the information I was seeking when I went to Wheat Ridge,” he told CFOIC.
“A shot of tequila.” A CORA request by Denver7 uncovered a frank email discussion among Denver Water officials about how to respond to the TV station’s inquiry about executive bonuses and other spending. “Glad you’re home and sitting down,” a member of Denver Water’s public affairs team wrote to another. “You may want to pour a shot of tequila.”
A commissioner’s “Hillary impersonation.” Weld County Commissioner Sean Conway announced he would start using a private phone and email account to conduct public business after The Greeley Tribune documented – via a CORA request – numerous calls between him and members of the county’s oversight board. Reminding readers of the FOI controversy over Hillary Clinton’s use of private email as U.S. secretary of state, a Tribune editorial slammed Conway’s decision to abandon his county-issued devices as violating “the norms of good governance.”
Denver’s denial. While Weld County and other governments provide call logs for government-issued cells phones in response to CORA requests, Denver does not. The city’s community planning department rejected Tim Lomas’ open records request for details of calls made by a city inspector on her city-issued cellphone.
The city claimed that it doesn’t keep cellphone records and is “unable to provide them.” Lomas’ attorney, Marc Flink, argued that Denver has a contractual to access the records from its cellphone provider and periodically exercises that right to verify that employees are using their phones primarily to conduct city business.
“Not allowed in building.” Private security guards monitoring student protesters at the University of Colorado Boulder posted signs outside the chancellor’s office featuring Twitter profile photos of four Daily Camera journalists and the words, “Not allowed in building.”
“This is a mistake that we truly regret,” said Melissa Zak, CU’s assistant vice chancellor of safety. She explained that the campus police department printed the pictures to remind the security staff “that no members of the public were allowed inside overnight.” Columbia Journalism Review mentioned the incident in a recent article on public universities denying journalists access to campuses and students.
So who was behind signs barring @dailycamera from a CU building? Campus police made them, private security hung them https://t.co/Uwv1CAvAdp pic.twitter.com/r5NpDVxV8V— Matt Sebastian (@mattsebastian) May 2, 2017
Where’s Ralphie? CU Boulder cited a security provision in CORA – added to the law after 9/11 – to redact the whereabouts of Ralphie, the school’s buffalo mascot, from documents requested by the Daily Camera. “Release of these records would be contrary to the public interest,” the university’s records custodian wrote. Added CU spokesman Ryan Huff, “We care deeply about Ralphie and want to ensure her well-being.”
Amazon H2Q. Like many jurisdictions across the country, several Colorado municipalities submitted bids for a second Amazon headquarters through a single, state-coordinated proposal. But unlike some other places, Colorado isn’t revealing key details, including proposed locations and taxpayer-funded incentives. “We don’t want to jeopardize (Amazon’s) ability to execute their strategy in our state in a successful way,” J.J. Ament, CEO of Metro Denver Economic Development Corp., told The Denver Post.
“I’ll see you in court.” Jay Seaton, publisher of The Daily Sentinel in Grand Junction, threatened a defamation lawsuit against state Sen. Ray Scott, R-Grand Junction, after Scott called the newspaper “fake news” in a tweet. “I take this allegation from Sen. Scott very seriously,” he wrote. “It attacks the very reason for our existence.”
Seaton’s threat got some national press, in Forbes and The Washington Post, but he eventually decided not to bring the lawsuit, writing that he didn’t think taxpayers should have to pay for Scott’s legal defense. “It was a ridiculous rant by someone who knows they don’t have a case,” Scott responded in an interview with The Complete Colorado.
A CORA double standard. If government records are open to the public under CORA, they should be made available to “any person” who asks for them. So why did Elbert County deny resident Jill Duvall’s request for the resignation letters and exit agreements of two county employees and then fulfill CFOIC’s request for the same records?
The inconsistent responses had to do with a change in county attorneys, County Commission Chairman Danny Willcox said. “Our previous attorney, Wade Gateley, said these couldn’t be released. When (the new county attorney) reviewed them, when you (CFOIC) got involved, he said, no, this meets the criteria” for disclosure under CORA. “We released them.”
Firing settlement. Commerce City agreed to pay $150,000 to former police officer Scott Green, who sued the city claiming he was fired for making an open records request. Green was let go three months after he sought disciplinary information from the city of Arvada on two fellow Commerce City officers who previously worked in Arvada.
A councilman’s CORAs. Frustrated by the city administration’s responses to his inquiries, Aurora City Councilman Charlie Richardson started using CORA to get information from the staff. But redactions and fees generated more frustration. “That made me extremely unhappy,” said Richardson, the former city attorney. “… They were asking for a total expenditure of $491 with no guarantee that I wouldn’t see blotches of black.”
“Why I threw a fit.” Erin Douglas, editor of The Rocky Mountain Collegian, explained to readers why she refused to leave when Colorado State University’s student senate called an executive session. Not only did the proposed closed-door meeting violate the Colorado Open Meetings Law, she wrote, the student body deserved to know why their student government president was being impeached.
Associated Students of CSU is indeed subject to the open meetings law, according to a letter to CSU’s general counsel from media lawyer Ashley Kissinger, but CSU and the student government insist that it’s not. ASCSU eventually used a secret ballot to remove student body president Josh Silva from office.
Whistleblower lawsuit. Monument clean-air advocate Leslie Weise sued Colorado Springs for defamation, saying city officials sought to “ruin her reputation in her community” for exposing pollution problems at the coal-fired Martin Drake Power Plant. The city had tried to sanction Weise for talking to a Gazette reporter about an air quality report that was inadvertently sent to her by the Colorado Court of Appeals.
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