We pay for government. We deserve to know what’s going on with government. Yet public records remain far too difficult for the public to access. The Colorado legislature needs to fix this problem as an urgent priority.
Indeed, the legislature should totally reverse the burden here. Right now, journalists and other citizens have to beg government officials for access to records and often pay for the privilege. In the Twenty-First Century, the Internet Age, government should automatically make all records available online for all to see, in easy-to-search formats, except in cases of overriding issues of privacy or security. In those cases, government officials should minimally redact documents and put them online, withholding documents only in clearly and narrowly defined cases. At least government should make redacted documents available to anyone who asks, at no charge, unless an agency can prove before an impartial panel that a request is abusive.
Here is how Alex Burness of the Denver Post summarized the problem: “Colorado’s open records law actually functions to limit public access to records. Journalists know this, public information officers know this, lawmakers know this. It’s very fixable, should anyone in power decide they want to do something about it.”
Elizabeth Hernandez, also of the Post, wrote, “Requesting public records is a critical way journalists and the general public hold powerful institutions accountable. Many agencies make the process as difficult and costly as possible to prevent the release of information.”
Burness was responding to something his colleague Conrad Swanson said: “CORA [Colorado Open Records Act] problems: In anticipation of possible armed protests coming up at the Colorado Capitol, I requested emails from the public safety director between Jan 8 and 11 with a few applicable keywords. Wanna see them? Well, it’s gonna cost $961.” Swanson posted a notice he received saying the government would spend 30 hours processing 452 emails at a cost of $33 per hour. Which is ridiculous on several levels.
Allison Sherry of Colorado Public Radio posted a photo of a stack of documents she received with many pages entirely blacked out. She did say she got “at least one story’s worth” of actual content for the price of $202.
Steve Staeger of 9News similarly posted an image of an email he’d received that was entirely blackened out. He wrote, “Just went through 600+ pages of e-mails I requested from the governor’s office. Mostly newsletters. But anytime there is substantive conversation . . . it looks like this [blackened out]. I’m seeking clarification of why so many conversations in here are redacted.” He added, “I should say, I assume it’s a substantive conversation. Because I have no idea what is being said.”
The Colorado Freedom of Information Coalition (CFOIC) added to Staeger’s note, “CORA entitles you to an explanation in writing that cites ‘the law or regulation under which access is denied.’ CRS 24-72-204(4).” Obviously government should not just be able to blacken out entire documents without meeting very high standards of justification.
CFOIC reviewed more of the specific CORA-related problems of last year. “Faced with quotes of hundreds or thousands of dollars, news organizations and individuals had to abandon some unaffordable Colorado Open Records Act (CORA) requests for public health-related records or significantly curtail the scope of those requests,” the organization found. At one point the Colorado Department of Public Health and Environment agreed to process a request only if the Denver Post forked over $20,000. State bureaucrats deleted some documents after a month, as the Denver Post also reported. Various government agencies delayed CORA responses.
CFOIC published an entire report on out-of-control CORA costs. But I would go a lot further. Whereas CFOIC seeks to restrain excessive fees, I think there should be no fees (again excepting possible cases of demonstrated abuse). This is public information! The public has a right to it. We shouldn’t have go grovel or pay to see what our government is up to.
Record transparency involving the judiciary is even worse, as Jon Caldara recently discussed. At least the courts made various civil records easily available throughout the pandemic, CFOIC reviews. This should become a permanent practice, the organization points out. The legislature should require it.
Here’s another problem, as Marianne Goodland reported last Fall: “A ruling by the Colorado Court of Appeals last week [said] the Colorado Independent Ethics Commission . . . is no longer subject to the state’s open records or open meetings laws.” Offhand it is hard to imagine a more absurd anti-transparency rule.
I realize that requiring government agencies to put all records online would cost money. This is a case where the expense is well worth it. We cannot hope to hold government actors accountable if we cannot easily figure out what those actors are doing.
At a minimum, the legislature should take significant steps toward making public records available online. As another CFOIC report summarizes, “Many commonly sought public records could easily be presented online by government agencies, drastically increasing accessibility for average citizens who have a right to know what their government is doing.”
It’s our government. Let the people see what’s going on with government. Open up the doors and let the light shine in.
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