By Jeffrey A. Roberts
CFOIC Executive Director
Some government entities in Colorado are delaying responses to public records requests because of the coronavirus pandemic, but the disruption of day-to-day transparency obligations so far doesn’t seem as severe here as in other parts of the country.
Hawaii Gov. David Ige outright suspended his state’s public records and open meetings laws until May 15 “to give government the maximum flexibility to focus its attention and personnel resources on directly addressing the immediate situation at hand.”
A bill passed by the District of Columbia Council lets any D.C. agency put off answering freedom-of-information requests as long as there is a “COVID closure.” In Washington state, a proclamation by Gov. Jay Inslee temporarily waives a requirement that agencies acknowledge the receipt of records requests within five business days. And city officials in California have asked Gov. Gavin Newsom to delay the response-time requirement in the state’s constitutionally mandated public records act.
“We’re at war,” New Jersey Gov. Phil Murphy told the Philadelphia Inquirer after signing legislation that eliminates deadlines for records custodians to approve or deny requests. “We just have to deal with the reality of manpower, the ability to turn things around.”
While there is no such statewide order or bill in Colorado, the Colorado Freedom of Information Coalition is noting examples of government entities that have put records requests on the back burner – or have alerted requesters of likely delays.
Wheat Ridge announced on its website that the city clerk may need up to 10 business days to respond to CORA requests. A note on Castle Rock’s website says “limited staff will be available to respond to open record requests due to the COVID-19 situation.” Denver Water’s website says the agency “is experiencing a slower response time for CORA requests due to short-staffing.”
A records assistant for the Douglas County School District informed reporter Jessica Gibbs the district wouldn’t respond to her request until after district offices reopen. (“We do not have access to district records at this time,” the public information officer explained a few days later.) Academy District 20 in Colorado Springs sent a similar message in response to a records request from Justin Twardowski, a University of Denver law student who is working on a project for CFOIC.
All Colorado schools are closed until April 30 under an order from Gov. Jared Polis, and many schools likely will remain closed through the end of the academic year (although some are starting remote learning).
“That raises some alarms for me,” said Gibbs, who writes for Colorado Community Media newspapers. “These closures could last a long time. Weeks, months, etc. How long is the public expected to wait to have access to public records, even in light of this unprecedented time?”
Here’s what the Colorado Open Records Act says about response time:
For records that are “not readily available,” the date and hour set for inspection is supposed to be within a “reasonable time” after a request is made, presumed in the law to be three working days. Records custodians may extend the response period by not more than seven working days if – during the initial three-day period – they provide requesters with a written explanation of “extenuating circumstances.”
Such circumstances are spelled out in the statute and mostly concern broadly stated and large requests. An extension is allowed if an agency “needs to devote all or substantially all of its resources to meeting an impending deadline or period of peak demand that is either unique or not predicted to recur more frequently than once a month.”
Durango Deputy City Clerk Faye Harmer cited that CORA provision in an email to Twardowski, although she left the response time open-ended rather than giving herself an extra seven working days.
“Your open records request cannot be fulfilled at this point due to the need of the City to devote substantially all of its resources to a unique situation …,” she wrote. “In addition, City staff is required to work remotely, limiting access to the requested information. You will be notified when resources and circumstances allow for the review of your request.’
Steve Zansberg, a Denver-based First Amendment lawyer and CFOIC’s president, said it’s understandable in this historically unique set of circumstances that many governmental offices are invoking the “extenuating circumstances” provision to postpone CORA responses.
“In offices where non-essential employees are complying with the governor’s stay-at-home order, the records custodian may not even have access to the responsive records,” he said. But where compliance is physically possible, Zansberg added, government agencies should consider the public interest served by fulfilling certain CORA requests.
“At a time when many people are living in fear for their safety, and that of their loved ones, it is vital that they be given access to information showing how their public servants are responding to the pandemic and related events. Whether that information provides comfort and assurance or points the way to areas of potential improvement, having access to it is far better than being kept in the dark where suspicions breed.”
Twardowski noted several governments that did respond to his requests, although some asked for a seven-working-day extension. Two of 11 entities did not respond at all.
The coronavirus also is affecting access to court records.
Trevor Reid, a public safety reporter for The Greeley Tribune, told CFOIC he regularly looks through paper copies of arrest affidavits from the 19th Judicial District. With court offices now closed, he asked about getting electronic copies but was told that wasn’t possible.
“I appreciate the steps the courts have taken for the safety of their employees, as well as the safety of the community,” Reid said. “But I find it alarming that our access to vital public records for understanding how local law enforcement operates has been shuttered as a result. At a time when people are under unprecedented government control, it’s more important than ever to be able to know exactly why police are making arrests.”
The Reporters Committee for Freedom of the Press has published best practices for governments and journalists to ensure timely access to government information. Its guide urges governments to give employees and contractors working remotely the tools and resources they need to continue processing records requests.
“At the state and local level, we’re seeing multiple localities refusing to even register incoming records requests as received until the pandemic is over,” said Reporters Committee legal fellow Gunita Singh during an online presentation Wednesday. “… This is obviously troubling because, while we understand that so many government operations are subject to delays right now, the public needs trustworthy and timely information now more than ever.”
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