Hickenlooper’s early transparency efforts fading

Wednesday and Thursday, March 20 and 21, were important days in this year’s history of Colorado government. Not only was Governor Hickenlooper signing a series of controversial gun bills, but upper levels of Colorado government were reeling from the news that the Director of the Department of Corrections, Tom Clements, had been shot and killed at his home in Monument.

We extend our condolences to those who knew Mr. Clements, to those serving in the Department of Corrections, and also to the Governor, as this was no doubt an incredibly difficult time for Mr. Hickenlooper. The son of a close friend allegedly shot and killed another close friend of the Governor.

And so the story that follows is an exposition on Government and open records. There is no conspiracy here, but there are, in my opinion, serious new questions about the ability to obtain meaningful open records from the highest office in Colorado.

As it so happens, around 2 AM Wednesday, I emailed a Colorado Open Records Act (CORA) request to Governor Hickenlooper asking for a copy of all the voicemails that would be created on either his office landline or his state-provided cell phone for both Wednesday and Thursday. At the time I filed the request, I was only interested in seeing what the Governor’s voicemails might possibly reveal about the gun debate, and the news about the Clements murder had not broken yet. I was not asking for these documents to make life worse for John Hickenlooper. But I was asking for these documents in advance for only one reason: to prevent their deletion.

The Governor and his legal counsel denied my request in whole.

I’ll explain more about that later, but first, let me ask your permission to tell you some of the back story that makes the denial of this records request even more interesting.

In January 2011, I was hosting some weekend talk shows on 850 KOA, the station where I began the Colorado portion of my career as a reporter. On Sunday, January 16, Governor Hickenlooper made a surprise call to my show. We talked on-air for about 20 minutes.

One issue that I pressed the Governor on was the new open records precedent set by the Colorado State Supreme Court in regards to cell phone call logs. The Denver Post had (appropriately) sued Governor Ritter over phone records. In that suit, the Post sought access to the government business calls logged on Ritter’s personal cell phone. Ritter argued, in essence, that any call made on his personal device, even if it was government business, could be withheld from open records access because he was the owner of the phone, not the state. As I’ve mentioned, the Supreme Court sided with Ritter, and in doing so, set a dangerous precedent for open records access that the legislature since has not addressed (although I believe it needs to be addressed).

When Governor Hickenlooper called me on 850 KOA, I asked him to promise to keep his phone records open, whether the phone was owned by him or the government. He agreed, with only minor and reasonable caveats.

So the quick recap of this episode would boil down to this: when pressed on open records access in 2011 on 50,000 watts of live radio, newly-elected Hickenlooper was all too eager to cooperate with the spirit of the open records law, even though he was not technically obliged to do so by the letter of the law.

It was such a good-government decision by Hick that it even drew praise from the Denver Post’s editorial pages.

Now to the current situation.

When I asked the Governor’s office for 48 hours of voicemails, James Eklund, counsel to the Governor, told me, “We are not, and cannot be, the custodians of public records that do not exist.”

Admittedly, there is an undeniable logic to Mr. Eklund’s statement. However, if the Governor’s office wanted to cooperate with the spirit of the law, and not rely on technicalities, it most certainly could maintain all incoming voicemails for a 48-hour period.  During those 48 hours the Governor’s office could analyze them to determine which, if any, should be withheld because of other open records exemptions, and then turn over the responsive voicemails.

Unfortunately, technicalities now prevail.

When I pressed Mr. Eklund to explain how I could obtain documents that are usually destroyed within minutes of their consumption, he told me via email, “Many documents that, if preserved, might be considered public records, including emails and drafts of documents, and are regularly created and deleted on the same day.  So too most voice mails.  Absent a request, our reading of CORA does not require that we retain every such document.  Indeed, it would be impracticable and burdensome to do so.”

Didn’t Mr. Eklund just make my argument for me?

I agree it would be impracticable and burdensome to retain every document created or received. That’s precisely why I was giving them advance notice of the documents I was seeking. By the time the CORA arrives, it’s probably already too late. Mr. Eklund has perfected a “heads-I-win-tails-I-win” scenario.

What exactly was I hoping to find? Often when I’m asked that, I respond, “I’ll know it when I see it.”  In my routine process of obtaining documents from Hickenlooper administrations (whether at the Mayoral or Gubernatorial level), I have found both good and bad things to report. One need not know exactly what the end result of an open records request will be in order to still make the request in good faith, and with full backing of Colorado law.

I’ve refiled my CORA request, for the same documents, for the same days (and added Friday, March 22 to the request as well). I expect a response next week.

However, regardless of the documents I receive, it’s almost certain I’ll have access to fewer documents than I would have had otherwise from two of the most important days Colorado has seen thus far in 2013.

(Post Script: I offered a first draft of this op-ed to Governor Hickenlooper’s spokesman, Eric Brown, and also to Mr. Eklund, asking for any comment they might wish to make.  Neither returned my emails.)

Todd Shepherd is the investigative reporter for the Independence Institute, and is the founder of CompleteColorado.com.  Email him at CompleteColorado@gmail.com.