Note: This is one in a series of articles in the SPJ Colorado Pro Chapter 2015 Sunshine Week project. Sunshine Week is March 15-21.

The Colorado Freedom of Information Coalition is a non-partisan alliance of groups and individuals dedicated to ensuring the transparency of state and local governments in Colorado by promoting freedom of the press, open courts and open access to government records and meetings. The Colorado Pro Chapter of the Society of Professional Journalists is one of the major donors supporting CFOIC.

By Jeff Roberts

CFOIC Executive Director

Question: What is the most frequent question or complaint you receive from the public?

Answer: I’ve kept a rough accounting of the questions we’ve gotten. Adding them up recently, I was surprised to see that members of the public had submitted more questions about access to records than about access to meetings. I had thought it would be the other way around.

Records questions can be as general as “How do I draft a public records request?” or as specific as “Am I entitled to what’s in that packet of papers handed out at the board meeting?” I get a fair number of questions about the cost of records. Even though the legislature capped “research and retrieval” fees last year, people are still concerned that they’re being charged too much. It’s tough for them to know whether their request really does require 15 hours of staff time to fill.

Question: What is the most frequent question or complaint you receive from news organizations?

Answer: Journalists, like ordinary citizens, tend to ask more questions about records, but they ask a higher percentage of questions about meetings than do members of the public. That’s probably because it’s the job of many journalists to attend government meetings on the public’s behalf. I get a lot of questions about executive sessions, whether it was OK for board members to meet behind closed doors and whether they announced the topic of a secret meeting with enough specificity. For a while, I got a lot of questions about email “meetings” involving members of a public body. This was around the time that Pueblo City Council members were accused of violating the Sunshine Law by discussing public business via email with a Pueblo County official.

Records questions from journalists tend to focus on specific exemptions in either the Colorado Open Records Act or the Colorado Criminal Justice Records Act. Journalists often are frustrated when law enforcement agencies claim that releasing certain records would be “contrary to the public interest.”

 Question: Are news organizations at the forefront of FOI challenges?

Answer: Yes! I’ve made it part of my job to collect and post news stories from all over Colorado related to freedom-of-information issues. Scroll through CFOIC’s news feed or subscribe to our newsletter and you’ll quickly see that news organizations of all sizes around the state are trying to hold governments accountable by using public-access laws and pointing out when those laws are ignored or misused.

That said, shrinking newsrooms and shrinking newsroom budgets have made it more difficult for news organizations to watchdog governments and wage costly legal battles against violations of open-government laws. That’s a big reason why the CFOIC ramped up its initiatives to help both journalists and the public navigate these statutes.

Question: How can CFOIC get the public more involved in FOI issues?

Answer: We’re working on it all the time! Help spread the word about us on Twitter (@CoFOIC) and Facebook. Several CFOIC initiatives are focused on getting the public more involved. The hotline is probably No. 1. Anyone can contact us with questions about the open-records and open-meetings laws. We’ve also assembled a small team of volunteer lawyers who will, when appropriate, write letters on behalf of members of the public. Our website is packed with resources and articles about FOI issues affecting Colorado. We also present panel discussions on topics such as school board transparency and the “gray areas” of Colorado’s public-access laws. Videos of these presentations typically are posted on CFOIC’s website so that anyone can learn from them.

Question: What bills are of interest to CFOIC during the legislative session?

Answer: So far this session doesn’t look to be as impactful as last year’s, when there was a major bill standardizing fees for public records.

We were very interested in a proposal that would make the Colorado Public Defender’s Office subject to the Colorado Open Records Act (CORA). You may not realize that court decisions have exempted the entire state judicial branch from CORA. This means that the public has no right under the open-records law to inspect administrative records on judicial branch spending and other matters. This includes how much the public defender’s office, which is a judicial branch agency, has spent so far to keep Aurora movie theater shooter James Holmes from the death penalty.

HB 15-1101, as drafted, had some problems in that it appears to substantially broaden what is now a narrowly defined provision in CORA that exempts attorney-client communications. It’s moot now, though, because the bill died on Feb. 12 in the House Judiciary Committee.

Question: How does communications technology – texting, emails, cell phones – affect adherence to open meetings laws?

Answer: As mentioned above, we’ve gotten a few questions about this. Technology makes it so much easier for us to communicate with one another. It also makes it a lot easier for elected officials to sidestep the Sunshine Law.

Last August, I wrote an article for CFOIC’s blog titled, “The dos and don’ts – mostly don’ts – of using email for public officials” because the law is not well understood, even though it specifically says that “if elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the requirements” of the Sunshine Law. The same holds true for texting, tweeting, etc.

The bottom line is, public bodies (city councils, school boards, etc.) should refrain from discussing public business in ways that don’t involve the public. For local government bodies, this applies to three or more members, or a quorum. If two members discuss policy matters on email, and one of them forwards the thread to a third member, that’s a violation.

Question: Should Colorado’s open meetings and open records laws be strengthened?

Answer: Yes. The law could be strengthened or clarified in several areas. Email retention, for instance. The law currently requires governments to have a policy regarding how long emails should be kept before they are deleted. The law doesn’t say what that policy should be.

It also would be helpful to clarify that records may be obtained in their “native” format. For instance, if you request a record that obviously was created as an Excel spreadsheet, make it clear that you are entitled to that spreadsheet rather than a pdf or a printed piece of paper.

In addition, it might be a good idea if Colorado offered some way of challenging denials of access other than going to court. In Colorado, even though you can recover attorneys’ fees, it can be intimidating and costly to initiate a court action to gain access to records or prove a violation of the Sunshine Law. A few other states have mediation or some other method of alternative dispute resolution. We are researching those. Stay tuned.

 Question: What are CFOIC’s fundraising projects?

Answer: Fundraising is an ongoing and necessary effort. Our small budget is supported entirely by dues, grants and gifts. So please consider making a tax-deductible donation or becoming an individual member.

We are working on a public service announcement campaign to expand CFOIC’s membership. If you have any fundraising thoughts for CFOIC, such as a foundation that might be interested in our mission, please email me at jroberts@coloradofoic.org.