Are unapproved meeting minutes public records?

By Jeffrey A. Roberts
CFOIC Executive Director

Because news organizations, especially nowadays, can’t afford to place a reporter at every government meeting, they often rely on interviews, recordings and minutes to figure out what happened.

But some government entities in Colorado refuse to release meeting minutes to the public until they are officially approved at the next meeting, which could be weeks away.

draftThat happened recently when journalists wanted to know more about the resignation of the superintendent of Clear Creek Schools and an announcement by the chief of Black Forest Fire/Rescue that he would be taking a leave of absence.

The attorney for the Clear Creek School Board told the Clear Creek Courant that draft versions of meeting minutes are “work product” and, therefore, exempt from public disclosure “until the board deliberates on the proposed minutes and takes action to approve them.” A spokesperson for Black Forest Fire/Rescue told KKTV in Colorado Springs that the chief’s statement would be in the minutes, which wouldn’t be made available until board members approved them at their next meeting.

Is that how it works in Colorado? Are unapproved minutes supposed to be off limits until a board votes to make them “official”?

In some states, such as Hawaii, Mississippi and Idaho, laws or court decisions specify that “raw” minutes are public records. In Massachusetts, meeting notes are considered to be public documents “at the time they are created,” according to the Secretary of the Commonwealth, although minutes should be marked “unofficial” if not yet approved or transcribed.

But the Colorado Open Records Act is silent on the matter, and there is no case law to provide guidance because the question never gets litigated.

“By the time a case might be filed, the draft minutes get approved and then get released,” said media-law attorney Chris Beall, who represents the Colorado Press Association and Colorado Broadcasters Association. “It is one of those issues that perpetually evades review because of the short time frame of the harm.”

Even so, Beall has written numerous letters on behalf of news organizations, explaining to government bodies that there is no exemption in the Colorado Open Records Act (CORA) allowing them to withhold unapproved minutes.

The argument that draft minutes are “work product” also doesn’t hold up, said Steve Zansberg, Beall’s law partner and president of the Colorado Freedom of Information Coalition.  CORA defines work product as materials assembled for elected officials that “express an opinion or are deliberative in nature and are communicated for the purpose of assisting … elected officials in reaching a decision within the scope of their authority.”

Draft minutes are not deliberative, Zansberg said. “They’re not recommendatory. They’re not advisory. They are a recording of what occurred in the previous meeting.”

But even if they were found to be work product, Zansberg added, CORA requires their release the moment they are distributed to a board for their use or consideration in a public meeting.

What should meeting minutes contain? How thorough should they be?

When the Clear Creek Courant finally obtained the official minutes of the May 20 meeting at which Superintendent Todd Lancaster was fired, the document revealed almost nothing about what had transpired: “Discussion between the Board of Education and Todd Lancaster, Superintendent, regarding thoughts and concerns as well as Mr. Lancaster’s comments.”

Courant Editor Ian Neligh never had seen minutes “quite so boring.”

“I was hoping the minutes would be a little more detailed – here’s what they said and here’s where the discussion went. But it was not the case this time.”

CORA states that minutes “shall be taken and promptly recorded, and such records shall be open to public inspection.” It doesn’t specify what information should be included, but Zansberg said it’s generally understood that minutes “are supposed to be a summary so that people who are not able to attend can understand what occurred at the meeting.”

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