Colorado Open Records Act

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The Colorado Open Records Act (CORA) is a series of laws designed to guarantee that the public has access to public records of government bodies at all levels in Colorado. The law was first enacted in 1969 and it applies to "the state, its agencies and institutions, cities, counties, cities and counties, towns, school districts, special districts, and housing authorities."

Until the law was formalized, the ability of a citizen to gain access to public records was at the discretion of the custodian of the records, except in those cases where records custodians were forbidden to allow access.

The Colorado Sunshine Law legislates the methods by which public meetings are conducted. Statute 24-6-402 of the Colorado legislature define the law.

[edit] Transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Colorado #10 in the nation with an overall percentage of 58.20%. [1]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Colorado 72 points out of a possible 100, a letter grade of "C", and a ranking of 8 out of the 50 states.[2]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Colorado's law as the 27th worst in the country, giving it a letter grade of "C-".[3]

[edit] Features of the law

[edit] How is "record" defined?

Colorado Revised Statutes 24-72-202 (6)(a) defines "public records" as "all writings" that are "made", "maintained", "kept" or "held" by entities that are subject to CORA "for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds".

This could mean that a record that is in the custody of an agency subject to CORA would not, itself, be subject to CORA if it was not made, maintained or kept for a governmental function or for an official reason.

In Wick v. Montrose County Board of County Commissioners, a 2003 case, a judge determined that a county manager's private diary was not a public record.[4]

A "writing" is defined as "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics." Data that is stored digitally, including e-mail, is included in the definition.[5]

[edit] Who can request records?

According to the CORA statutes, any person may inspect any public record at any reasonable time. The statute says, "All public records shall be open for inspection by any person". This includes public employees, elected officials, corporations (for-profit and non-profit), and journalists.[6],[7]

(For requester requirements in other states, see the list of who can make public record requests by state.)

[edit] Must requestors state a purpose?

Those who request records are not required to state a purpose, and the custodian of the records should not ask them to provide a reason.

[edit] How can documents be used?

There are some restrictions:

  • Requesters of access to criminal justice records cannot use the records for solicitation of business for monetary gain.[8]

[edit] Proposed changes

Main article: Proposed reforms in state sunshine laws, 2009‎

House Bill 1145 [9] requires private investigators to register with the state's attorney general and created a rebuttable presumption that registered private investigators may access public records including driver's license and vehicle records information.[9] However, public agency employees are authorized to deny access to the records "if contrary to the public interest".[9]

House Bill 1251 [10] creates a presumption that criminal records involving investigations are public records, but it also allows for record custodians to deny access to the records if they determine disclosure is "contrary to the public interest".[9]

Senate Bill 49 [11] seeks to make the compensation information of state employees subject to public records requirements under the Colorado Open Records Act so long as the identifying information of employees is kept confidential.[11]

Senate Bill 57 [12], also known as the "Public School Financial Transparency Act", seeks to require Colorado school districts to post their budgets online in searchable formats. Bruce Coughy, deputy director of the Colorado Association of School Executives opposes the bill, saying that it amounts to an unfunded mandate placed on school districts. Primary sponsor of the bill, Sen. Ted Harvey (R-Highlands Ranch), says: "The only opposition is that this would be a burden to the administration, and if the citizens want this information they can get it through an open records request. That type of arrogance from government bureaucrats is exactly why the citizens have lost trust in our government and why this bill is important." [13]

On February 19, SB 57 passed the state senate Senate on its third reading by a vote of 26-8. But on March 19, after a marathon hearing that lasted more than four hours, the bill was killed by the Democrat-controlled House Education Committee on an 8-5 party-line vote.[14] Before killing SB 57, the committee narrowly agreed to adopt an amendment proposed by House sponsor Republican Rep. Amy Stephens to make the bill's provisions less burdensome for school districts.

Ben DeGrow of the Independence Institute supports SB 57 saying "Shining sunlight on the detailed financial picture for all to see would help strengthen the 'public' in public education." [15] About 30 other citizens visited the Capitol on February 2, 2009 to show their support for the bill. [16]

[edit] What entities are subject to CORA?

[edit] Governor's office

  • CORA applies to members of the Executive Branch.
  • It applies to the records of all executives.
  • It applies to records "for use in the exercise of functions required or authorized by law or administrative rule or involving the expenditure of public funds".

In Denver Post v. Ritter, a lawsuit filed in 2008, the Denver Post is suing Gov. Bill Ritter over Ritter's refusal to provide the newspaper with nineteen months of cell phone records for a private cell phone that Ritter uses for some political or governmental discussions. The outcome of this lawsuit will further clarify what records of executive branch are subject to CORA.[17]

[edit] Govermment entities

CORA applies to virtually all levels and types of governments across Colorado.[18] This includes state agencies and institutions, cities, counties, cities and counties, towns, school districts, special districts, and housing authorities.[19]

Public governmental bodies are defined as legislative, administrative or other entities created by the constitution or statues of the state. An organization may also be considered a governmental entity by ordinance of any political subdivision or districts as well as judicial entities when operating in an administrative role. These entities are narrow by municipality, county, township, school district or a special-purpose district.

CORA also applies to any "agency or instrumentality" of a political subdivision, as determined in the case, Zubeck v. El Paso County Retirement Plan.[20] Other non-profit corporations could be considered to fall under the Colorado Open Records Laws if they were established by a governmental body to perform governmental functions with public funds. This interpretation was articulated in Denver Post v. Stapleton Development.

Education agencies are subject to CORA. The state's institutions of higher education, including public universities and colleges, are subject to open records requests. The University of Colorado and its regents are specifically included.[21] As another testiment to the wide scope of the Colorado Open Records laws, the acts specifically comment on "institutionally related foundations," including health care and real estate foundations as being subject to the laws. An institutionally related foundation is defined as a nonprofit corporation, institute or similar entity that is organized for the benefit of an institution, and whose principal purpose is receiving private donations to be used for the benefit of that institution. "Public records" for such a foundation include all writings relating to the requests for disbursement or expenditure of funds. [22]

[edit] Executive session

Executive session is a type of working session where governing boards or legislative bodies are said to be engaged in executive business. Executive business can be hiring or firing discussions, contract negotiations, or other strategic discussions. These meetings can be open door, meaning the public is allowed to attend, though usually they cannot participate. Executive session in regards to local bodies or smaller organizations often are closed door, forbiding the public from attending the meeting or restricting access to those records. Executive sessions are designed to protect individual members of the board from public rancor over their specific input. In most deliberative bodies, individual members sometimes need the freedom to speak their minds, or engage in sensitive topics without being individually targetable by the public. Despite this need, the final results or decisions by the board at large are always subject to public scrutiny.

In Colorado, an executive session is permitted under the laws. A government body must provide a detailed explanation of the topic for executive session, which is announced to the public. Legislative bodies and most government boards will need to formally vote to enter executive session. No government organization subject to the open records laws should operate continiously under executive session. As noted on the Colorado Common Cause website, government bodies usually are forced to reach a super majority (two-thirds of voting members) to enter into executive session.[23]

[edit] Exemptions

[edit] Deliberative process exemption

CORA has a deliberative process exemption in Section 24-72-202(6)(b)(I)-(III) which exempts work product prepared for elected officials from public disclosure. In the 2008 case of Ritter v. Brad Jones, a judge used this exemption to withhold copies of communications between lobbyists and a state legislator from a requestor.

[edit] Electronic media

Computer records are frequently used in Colorado government to hold public information, and such records are included under the Colorado Open Records Law. "For example, electronic mail is widely used, and is an open record unless it is otherwise exempt from public inspection. The same is true of records kept in government databases."[24]

[edit] Notable requests

[edit] 2009

The Associated Press learned through a CORA request that the state's Department of Natural Resources understated the costs of a new oil and gas regulation program when legislative hearings where held on the proposed program in 2007. A February 2007 financial statement given to lawmakers during their deliberations estimated the cost of enforcing the new regulatory regime at $6,840. However, the Associated Press discovered that the agency had a "Plan A" outline of estimated costs for the program--which put the estimated cost of the new regulatory apparatus at $1.2 million for fiscal year 2007-2008.[25]

[edit] Relevant legal cases

[edit] See also:

[edit] External links

[edit] References

  1. ↑ Integrity Index available for download here
  2. ↑ Graded state responsiveness to FOI requests, 2007
  3. ↑ Freedom of Information in the USA, 2002
  4. ↑ Open Government Guide, "What records are and are not subject to the act?"
  5. ↑ Colorado Revised Statutes, § 24-72-202.7
  6. ↑ Colorado Revised Statutes, search for 24-72-201
  7. ↑ Open Government Guide to Colorado
  8. ↑ Open Government Guide to Colorado
  9. ↑ 9.0 9.1 9.2 9.3 Text & Status of HB 1145
  10. ↑ Text & Status of HB 1251
  11. ↑ 11.0 11.1 Text & Status of SB 49
  12. ↑ Text & Status of SB 57
  13. ↑ Senate committee contemplates online school budgets, Face the State, January 29, 2009
  14. ↑ Senate Bill 57 dies on party-line committee vote
  15. ↑ Schools need open books, Denver Daily News, January 27, 2009
  16. ↑ Activists Want School Spending Details Online, Associated Press, February 3, 2009
  17. ↑ Post sues over Ritter's phone records, August 12, 2008
  18. ↑ CO Attorney General - Colorado Open Records Act Nineteen Frequently Asked Questions
  19. ↑ CO Attorney General - Colorado Open Records Act Nineteen Frequently Asked Questions
  20. ↑ FindLaw Case Summary - Zubeck v. El Paso County Retirement Plan
  21. ↑ Open Government Guide to Colorado
  22. ↑ Open Government Guide to Colorado
  23. ↑ Colorado Common Cause - Colorado Sunshine Act of 1972
  24. ↑ CO Attorney General - Colorado Open Records Act Nineteen Frequently Asked Questions
  25. ↑ Associated Press, "Lawmakers: State withheld budget figure on energy", February 3, 2009
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