2023 Leg Session, Featured, Free Speech, Gold Dome, Media, Sherrie Peif, Uncategorized

Draft open records bill favors journalists over the public; ‘news media’ defined by legislature

DENVER —A legislative bill still in draft form would codify a state government definition of who is a journalist, as well as differentiate both waiting times and the cost of public records requests under Colorado’s open records law for those who don’t meet its definition.

While the intent is to make public records more affordable and easier to obtain for some, the bill’s current language also gives government more control over who can play watchdog, making it costlier and more cumbersome for average citizens to get information on their elected officials than for those who would fall under the definition of “news media.”

The draft bill is sponsored by Democrats Chris Hansen in the Senate and Marc Snyder in the House.  Senator Hansen is also a candidate for mayor in the forthcoming Denver municipal election. The bill defines “news media” in basic terms as either a broadcast entity that is licensed by the federal communications commission or is a publication that has published one or more regular editions in each of the four calendar quarters preceding the request for public records.

However, it also requires that those entities:

  • Primarily serve the needs of the public by providing news information.
  • Has news gathering entities or programs that primarily have content derived from primary sources relating to news and current events.
  • Employs at least one full-time journalist for thirty hours a week or more.
  • Is covered by media liability insurance.
  • Discloses its ownership to the public.

It further specifically identifies who the government does not consider a news outlet:

  • 501 (c)(4) organizations.
  • 501 (c)(6) organizations.
  • IRS 527 organizations.
  • Owned or controlled by or receiving over 50 percent of its revenue from or more of the organizations previously identified.

A third category of records requester includes anyone who does not meet the state-defined media definition and does not reside in Colorado or who wants the information for “commercial purposes” and makes those open records requests the most cumbersome and the most expensive. However, the bill does not define “commercial purposes,” leaving the determination up to the custodian of the records by default.

Under the bill’s definitions it appears that freelancers, bloggers, podcasters, non-profit watchdogs and other non-traditional media organizations and individuals would not be considered legitimate news outlets.

Additionally, elected officials would not be able to request records at the cheaper rate, neither would employees of the state or any tax-funded entity.

As for how long a government entity would have to fill an open records request under the bill:

  • News media as defined by the legislature would receive the information in three days or less, with extensions possible to seven days.
  • Non-traditional media and regular citizens could wait up to seven days, with extensions possible to 14 days.
  • Anyone using the information for commercial purposes, could wait could be as many as 14 days, with extensions up to 28 days.

As it pertains to cost, the first hour of research and retrieval fees is free for all but commercial users, after that:

  • News media under the bill’s definition would pay no more than $16.79 (currently $33.58). Entity must post their charges online.
  • Non-traditional media and other citizens would remain subject to the current fees of not more than $33.58 per hour.
  • For anyone using the information for commercial purposes there is no first hour free stipulation. The charge remains at $33.58 except that “the hourly fee may exceed such amount as necessary for the custodian to recover all of its costs associated with responding to all requests for public records.”

The costs can be adjusted on July 1, 2024 and every five years under the bill to align with the consumer price index for the Denver-Aurora-Lakewood area.

Government records custodians under the new bill will assume the requester is not a member of the news media. It will be on the requestor to prove they are a member of the media by submitting with the request a copy of their press pass or certification of eligibility from an association representing the majority of newsrooms in Colorado.

Other changes under this bill would include:

  • Allowing charges to be paid for with a credit card.
  • Changes “electronic mail” to “electronic communication,” which expands the definition to mean all forms of electronic communication “that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is view upon transmission or stored for later retrieval.” It includes electronic communications that are transmitted through a local, regional, or global computer network.”
  • Clarifies the definition of public records to include, “all writings made, maintained, or kept by the state, any office, agency, or institution of the state, certain nonprofit corporation incorporated in connection with a government agency, a political subdivision of the state, any local-government-financed entity, or involving the receipt of expenditure of public funds, such as school districts and special taxing authorities.
  • Requires that if a record in available in digital format that is sortable, searchable or both, it is transmitted to the requester that way. It also prohibits the custodian from converting a digital record into a non-searchable format.
  • The requires all electronic communications sent to or received by an officer or employee of the government entity be kept at minimum until the applicable proceeding they represent is completed. It also requires all records requested under an open records request be kept until the request and any appeals are resolved.

The bill appears to be supported by the Colorado Press Association, which is Colorado’s largest news print organization, as well the Colorado Freedom of Information Coalition (CFOIC), which purports to promote not only freedom of the press, but also “open courts and open access to government records and meetings.”

In a recent blog post, CFOIC’s executive director Jeffrey Roberts wrote that “…the measure partially addresses issues raised by CFOIC in reports and articles such as the often-high cost of obtaining public records in Colorado and the state’s weak law on email records retention.”

Roberts further notes that the bill “…does not curb rising CORA fees for the general public, as CFOIC hoped it would…”

While the changes to the definitions around public records have long been sought by journalists and advocates of greater government transparency, the notion of state government defining what is and isn’t ‘news media’ sparked a strong reaction from some.

“The solution to this problem of access to public information cannot be for government to privilege certain people over others in granting that access,” wrote Complete Colorado columnist Ari Armstrong in a recent opinion piece about the bill, noting that “Any such effort is inherently unjust.”

Chase Woodruff, a reporter for the ideologically progressive Colorado Newsline said in a Tweet that: “No journalist or journalistic organization should support this.  We should be advocates for broad values of transparency and accountability, not awarding special privileges to ourselves.”

Complete Colorado will continue to follow this bill through the process.



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