A former employee of the Colorado Department of Revenue (DOR) claims he was ordered by that agency’s executive director to delete emails that discussed how the agency was proceeding with an open records request.
Dan Bradley, who worked almost three decades as an FBI agent before serving just over two years with the DOR, stated he was advised by the the Colorado Attorney Generals’s Office that the order to delete emails by DOR Executive Director Barbara Brohl did not violate any laws or statutes. But he’s coming forward to tell his story precisely because he finds that problematic.
Speaking exclusively with Complete Colorado on the Colorado Public Television public affairs show Devil’s Advocate, Bradley says in early 2014 he and others were told by Brohl to delete emails:
Well as you indicated in the beginning of the interview, there’s no indication that any of this was illegal, or that it was even a violation of policy. But due to my experience as it relates to public corruption issues and efforts to limit corruption from occurring, I became concerned specifically in one meeting which occurred in early 2014, where I was directed, along with other individuals, to delete emails, uh, that related to how we were responding to a CORA request — specifically what type of information we would release as it was related to that request.
When I was asked by the, uh, director of the Department of Revenue, Barbara Brohl, to delete that, to delete those groups of emails along with other people, uh, my immediate response was, ‘Are you familiar with Lois Lerner?” — and that I was going to go to the Attorney General’s office, uh to obtain an opinion about the legality of the issue.
When I contacted the Attorney General’s office, after they reviewed the matter, they said, “Okay, Dan, it’s legal because there’s no criminal statute against it, and there’s no policy against it.” So, at that point in time I followed the director of the Department of Revenue’s instructions because she was my reviewing official as it related to my employment, and at that point in time I deleted the emails in question. But I was concerned. Uh, and I made a mental note that when I would left the Department of Revenue, that I would bring the matter to the forefront.
Additionally, during the timeframe that I worked with the lottery, on a couple of occasions at least, I was requested to limit email communications as it related to particular topics.
Bradley said he has no axe to grind over any issue during his time at the department, but he’s concerned that actions that reduce government transparency erode public confidence in the trust between the people and their government institutions.
However, the DOR said Brohl only interacted with Bradley one time regarding CORA requests, and claimed that Brohl had to direct Bradley to release documents. In an email, DOR spokeswoman Lynn Granger said:
The Colorado Department of Revenue (CDOR) takes Colorado Open Records Act policy and procedure very seriously and works hard to ensure that we are responsive and transparent. To that end, we have dedicated a resource to coordinate and respond to all CORA requests. It is our policy to release responsive documents to the fullest extent required by law. During the only instance in which Ms. Barbara Brohl, Executive Director for CDOR, was involved in a CORA request that required action by Mr. Bradley, she actually had to direct him to release responsive documents. Finally, the Department stands by its policy to be transparent and responsive to all CORA requests.
Bradley says he didn’t come forward back in 2014 because he felt he had no serious legal recourse after he discussed the situation with the Attorney General’s office:
After I received the opinion from the Attorney General’s office in regards of the legality of the activity, and that it was not a violation of policy, I realized first off I was required to follow the actions, the directions of my executive officer. Secondly, I realized I would have no protection under the whistleblower statute, because I wasn’t bringing forth anything that was illegal or anything that was against policy.
So, this was an issue that I put aside with the mental note that when the time came that I was leaving government service, that I was going to make an effort to prevent this type of issue from coming, or occurring again – either by attempting to create statute within the State of Colorado that would prohibit this type of activity, or by contacting the Governor’s office, trying to get an executive order or policy as it related to this type of activity.
State law prohibits the deletion or destruction of documents that have been requested under the Colorado Open Records Act (CORA). Bradley was clear in his allegations he was never instructed to delete documents that were directly responsive to a CORA request, only to delete what might be termed ‘workflow’ documents – emails that discussed which documents were responsive and why.
The recent conversion by state agencies to a Google-based email system has only made the situation worse, according to Bradley. With a small handful of exceptions, state employees in a majority of departments do not have Google Vault, a tool that makes email archiving automatic for a certain rolling length of time.
As for other transparency issues, the DOR was recently knocked by the Denver Post for putting a $10,000 price tag on a request for documents that would show ownership information on marijuana businesses operating in Colorado.
A Post house editorial said, “Lawmakers need to rectify an inexcusable situation at the Marijuana Enforcement Division of the Colorado Department of Revenue. The agency refuses to release basic ownership information for marijuana businesses without exorbitant fees — fees that don’t exist when the public retrieves the same information for other licensed businesses, including liquor stores.”
Complete Colorado has had its own problems obtaining documents recently from the DOR. After a report last September showing a 40 percent spike in the number of “balance due” letters from DOR, Complete Colorado requested new spreadsheet data that would provide a thorough breakdown of all the various delinquencies and “balance due” letters. The DOR refused to run a new report.
Even after Representative Kevin Van Winkle (R – Highlands Ranch) asked the DOR for the same information that was being requested by Complete Colorado, the agency repeatedly refused to run a new report and communicate the data.
As for why Brohl might have ordered the deletion of emails that only discussed a CORA request but were not responsive in and of themselves, it is a tactic of seasoned investigative reporters to “cycle back” and file a second CORA request that asks for all documents and emails discussing the first open records request.
For example, in 2014, investigative reporter Brian Maass with CBS4 Denver broke a story on the Adams Count reverse 911 system being used to promote community meetings.
Several days after the story broke, Maass obtained more information on the thought process of Adams County Sheriff’s officials by cycling back and filing a second CORA request asking for documents related to the first CORA request.
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