Coloradans should be concerned that state officials have sought to hide important environmental policy conversations from them.
Through a 2013 federal Freedom of Information Act (FOIA) request, the Independence Institute found some state officials circumventing transparency while serving in their official capacity, using personal, private email services to skirt the state’s Open Records Act and their own departmental guidelines on state employee email retention.
The FOIA, filed on behalf of the Independence Institute by the Competitive Enterprise Institute’s Chris Horner, revealed former Environmental Protection Agency Region 8 administrator Jim Martin’s extensive use of private emails to create unofficial channels of correspondence with a variety of state officials, environmental activists, scientists, and others.
This included coordinating messaging strategy with senior officials high in the administration of Gov. John Hickenlooper. Both Alan Salazar, chief strategy officer to the governor, and Martha Rudolph, director of Environmental Programs for the Colorado Department of Public Health and Environment, sought Martin’s input on a Republican-sponsored water bill meant to save rural water districts in Colorado millions of dollars.
As early as December 2011, before any legislation was even formally introduced, Rudolph told Martin she “would like to strategize on this” — referring to the possibility of legislation in the upcoming session.
“So we have been talking over here about the possibility of EPA, at the highest level, having a conversation with the Governor — about the need for the regulation, and specifically what EPA would do if Colorado does not act,” Rudolph wrote.
Once House Bill 1161, introduced by then-Rep. Marsha Looper, R-Colorado Springs, survived its first committee vote, Salazar became concerned about giving his boss political cover on the issue by having Martin — and the EPA — weigh in on the matter.
“1. My sense is that it’s fine to take some time with the response. Doesn’t have to be soon — maybe better if it’s not too quick. 2. Specificity and direction with regard to the questions posed would also be helpful. 3. We don’t want to expose the administration to political fire, but also need to see language that articulates the hard legal consequences for the state,” Salazar wrote.
With the bill progressing, Martin asked Rudolph in April 2012 if the EPA’s involvement ultimately would have any sway on legislators.
“Bottom line — are comments from EPA helpful or hurtful?” Martin asked.
The bill was killed on a party line vote just a few weeks later.
In many of the email exchanges, officials like Salazar and Rudolph avoided transparency laws by using their private AOL or Gmail accounts to contact Martin. In doing so, they avoided Colorado Open Records Act (CORA) scrutiny that required staff to curate non-departmental emails. Indeed, initial CORA filings did not reveal any of the FOIA emails. There is no prohibition on personal emails in Colorado; however, CORA did reveal that Salazar had maintained two separate non-official email accounts.
Rudolph’s CORA response maintained the official had “only” used her non-official Gmail account for Google Alerts.
In other words, without the original FOIA, these emails would have been lost, as CORA filings would not have produced them in the returns.
In many cases, as Independence Institute’s investigative reporter Todd Shepherd would later substantiate, Colorado departmental agencies have short sunset periods in their regulations on email document retention that might only extend to 30 or 60 days. Some might even permit email deletion the same day.
For example, the Governor’s Office suggests a “best practice” 30-day retention period “unless there is an overriding reason to retain it for longer.”
“As I noted in my e-mail from last Thursday, neither the current nor the previous policies require employees to retain their business-related e-mails for any particular period of time,” wrote Kathryn Starnella at the Attorney General’s office to Independence Institute attorney Geoff Blue.
“OK, so I can be very clear. The Governor’s office’s position is that its employees have no obligation to retain any email for any length of time. Correct?” Blue asked Starnella.
“The Governor’s Office’s document and e-mail retention policy speaks for itself,” Starnella responded.
Apparently they think it’s none of your business.
Michael Sandoval is an energy policy analyst for the Independence Institute, a free market think tank in Denver.