Bipartisanship is in bloom at the state capitol – and in the case of one bill introduced to the legislature last week, we would be better off if it wasn’t. Last week, state Representatives Matt Soper (R) and Cathy Kipp (D) announced that they were cosponsoring a bill to accomplish a goal many elected officials have long dreamed of: making sure you cannot see their emails.
Kipp, the bill’s Democratic sponsor, told Colorado Public Radio that the intent of the legislation was to address abuse of the Colorado Open Records Act (CORA), which can be used by bad actors to bog down state and local governments by subjecting them to a high number of requests.
It’s a fair point: CORA is flawed and badly in need of reform. As a researcher and investigator, I frequently employ CORA, and I am well acquainted with its shortcomings: despite its name, it often falls short of actually providing access to public records. I’ve dealt with CORA from the other side too: as a former legislative aide who, many years ago, had to deal with CORA requests from the government perspective, I am familiar with the burden that records requests can place on the offices that receive them.
I do not write about legislation often; it’s a phenomenon significantly downstream from the things I tend to focus on, like money, power, and ideas. This legislation, however, compels me to make an exception. If passed, it would significantly strain the ability to monitor the money, power, and ideas shaping our state. So today I’m stepping off my normal beat and wading into direct advocacy. I’m going to tell you exactly why the General Assembly should kill this bill, and what remedies they should consider in its place.
HB-1296 is an uneven trade: it asks far too much for far too little. While Kipp and Soper have identified a legitimate problem with how CORA is utilized, the solutions they have proposed are far too broad. The bill they have brought forward is not a surgical endeavor to excise a few unintended consequences from the application of the Colorado Open Records Act. It’s an attempt to remove a cyst with a shotgun. If passed, the bill would dramatically compromise Coloradans’ access to public records, and, in many cases, would grant elected officials – the same elected officials whom CORA intended to hold accountable – the right to capriciously deny records requests on the thinnest of pretenses.
The bill, for instance, would allow government officials and agencies to label people who submit CORA requests as “vexatious requesters” and bar them from requesting additional documents for a period of time. I say the bill would allow “people who submit CORA requests” to be labeled that way because the text of the legislation simply does not specify any actual criteria for who can be labeled vexatious, or under what circumstances they can have their right to access public records restricted.
Sure, the bill hand-waves the need to define the term – people who “demonstrate an attempt to annoy” the custodian of the records (the person whose custody the records are in), for instance – but ultimately leaves the designation in the custodian’s hands. In Colorado, the custodian of an elected official’s emails is usually the elected official themself. In other words, the bill would allow a lawmaker to receive a CORA request, become annoyed by it (or, perhaps more to the point, simply not want to surrender the requested records), and summarily restrict the rights of a Colorado citizen on the grounds of that annoyance.
Last year, parents in the Woodland Park School District tenaciously requested records of emails from school board members and district administrators. In doing so, they learned that the district was mistreating teachers, failing to disclose enormous legal fees, and planning to implement a far-right social studies curriculum. The district fought the requests the whole way, not because they were onerous or had become a burden to the district, but because they knew that the release of those emails would cause them political heartburn. Last spring, WPSD became so desperate to slow the flow of information being gleaned from CORA requests that they fired the district’s CORA administrator.
If HB-1296 were in effect then, none of that would have been necessary: the district could have labeled a few dozen parents as vexatious, restricted their right to submit records requests, and been done with it. If a citizen wants to appeal the designation, they must do so in district court, incurring legal fees along the way.
Yet, somehow, the “vexatious requester” designation is not even the bill’s most outrageous or overly broad provision. If passed, HB-1296 would also allow elected officials and government agencies to withhold from scrutiny any records which “would invade another individual’s personal privacy.” The bill does not even make a token attempt to define what it means to “invade another individual’s privacy,” nor does it spare a single jot or tittle to so much as acknowledge the difficulty in navigating the public-private line for public officials.
I gladly accept that parts of public official’s lives should be private – it’s a complex balancing act. What I don’t accept, though, is that they should get to unilaterally decide which of the public records in their custody are actually part of their private lives and therefore not subject to scrutiny.
Furthermore, even if a set of boundaries could be defined, privacy would still be invoked for the wrong reasons. “Privacy,” for instance, is often cited as a reason for withholding any records pertaining to sexual assault, under the perfectly understandable and justifiable rationale of protecting the victim’s identity. That exact same policy, though, often serves to protect the perpetrator as well. Would you feel good about the state of transparency and accountability in Colorado if you knew that there was an elected official in the Denver metro area who allegedly had a habit of treating women in his employ quite badly, but that his victims’ privacy had been successfully invoked to block the release of any and all records indicating that the elected official was quietly subjected to internal discipline for his offenses? I wouldn’t. Yet that exact end-run around accountability could be enshrined in law by Kipp and Soper’s bill. Surely, if comprehensive CORA reform were undertaken, provisions could be put in place to protect victims’ identities – as they should – without simultaneously protecting the reputations of perpetrators. That’s exactly the kind of question Kipp and Soper’s bill refuses to wrestle with.
It’s an uneven trade, demanding massive sacrifices to our systems for transparency and accountability in order to address a relatively small, technocratic problem. Uneven trades happen in lawmaking; sometimes there are not good solutions. Sometimes the only solutions come with unfair trade-offs. But this is not one of those times.
CORA is not some eternal institution of the heavens. It is not some Kubrickian monolith of unknown origins, eternal and unchanging. It was passed into law by the state legislature. If the state legislature has problems with how that it’s functioning, they have the power to reform it, to tailor it, to bring it up to the modern era in a way that preserves the ideals and practical applications which led democratic societies to value transparency in the first place, while also addressing the underlying problems with its implementation. All of that is possible, and it is possible without the trade-offs demanded by Kipp and Soper’s bill.
The problem Kipp and Soper are trying to address is real. In recent years, fringe groups around the state have alighted on the idea of using CORA as a strategy to fight their local governments. During COVID, for instance, conspiracists bombarded local public health departments like Tri County and Jefferson County Public Health with coordinated CORA campaigns designed to gum up the works. This wasn’t just a Colorado problem, public entities nationwide experienced similar issues.
When the state or local government receives a CORA request, the law binds them to fulfill certain obligations in a certain time period, including responding to the initial request within a set amount of days, and furnishing the requested records within another set amount of days. By submitting a CORA request, you can force cogs in the local government to start turning. By submitting another CORA request, you can make them keep turning. If you were to do this in an organized and dedicated enough way, you could conceivably grind your city or county government to a halt, requiring them to dedicate most of their time and resources to fulfilling their legal obligations under the Colorado Open Records Act.
It warrants noting that no local governments in Colorado have actually been ground to a halt using this strategy. Pain has been incurred, time has been wasted, and public resources have been spent on the suboptimal use of responding to insincere records requests – none of which is ideal – but no vital services have been suspended because of the scourge of CORA. To the extent that much of the bill is predicated on this concern, it’s worth mentioning that the concern is largely hypothetical. This is not, in other words, the kind of urgent problem which requires the sacrifice of public oversight in order to remedy. There are other ways.
To prevent CORA from being fully weaponized to annihilate government productivity, lawmakers need to address two primary problems with the law: custodianship of records and retention of records. Given that these topics are disproportionately interesting to me, and quite possibly not to you, I’ll gloss them quickly.
First, custodianship. One of the reasons you can bog down a legislator’s office with CORA requests is because, under the law, legislators are the custodians of their own emails. When they receive CORA requests, their staff end up processing those requests. Given that these offices each have only a single staffer, the time spent processing a CORA request is time not spent performing other duties. Insufficient staffing levels aside, this is not a problem which inevitably arises from the public being able to request access to legislators’ emails. It is a problem which has arisen specifically from how CORA assigns custodial responsibility to legislators.
Instead of legislators being the custodians of their own records – which, in addition to being a time-suck for them, also presents a striking conflict of interest – nonpartisan capitol staff should be assigned that role. Wouldn’t it be easier for everyone if a CORA request for a Representative’s emails went to, say, House Services and the capitol IT department? The legal side can approve or narrow the requests, then a systems administrator can retrieve the requested emails from the state’s servers. This setup would remove the burden of time spent fulfilling requests from lawmakers who are busy with other parts of their jobs, and it would do so without requiring the public to sacrifice their access to public records.
The second major problem with CORA is records retention. Or, rather, the lack thereof. Dozens of other states’ open records laws include record retention requirements – essentially parts of the law that say which kinds of records need to be retained, and how long they need to be retained for. CORA does not have that. In fact, CORA has no records retention requirements whatsoever, allowing public officials to delete their records at will. If those records are later requested, they cannot be handed over: they are no longer in the custodian’s possession. While this grants officials a great deal of leeway to conceal their doings (another reason why the very concept of HB-1296 seems spurious), it also makes the process of requesting – and turning over – records much more difficult. States with clear records retention policies are much easier to request records from, and they are much easier to fulfill requests in. When you have a system for retaining records, you necessarily also have a system for categorizing those records (so you know which ones to retain).
Take Ohio for example. Ohio has a comprehensive records retention schedule online, where anybody can access it. If I, for instance, wanted to request records about any repairs or modifications made to Ohio government buildings, the retention schedule would tell me that I’m looking for documents in series GAR-BLM-02, and that those records are retained for two years before being destroyed. The schedule tells me that each agency of the Ohio government retains its own GAR-BLM-02 series records. So, if I wanted to know about the Department of Education building expenses, I could write to the Ohio Department of Ed and ask for any records in series GAR-BLM-02. This would save me the time of sending emails to fifteen different government agencies trying to figure out who keeps building records – the state architect? capital construction? – and would save fifteen government agencies the time they would otherwise spend telling me to reach out to the Department of Ed. It would also save me the hassle of unknowingly requesting three-year-old records from series GAR-BLM-02: the retention schedule helpfully tells me that those records will have been destroyed by now.
Scintillating stuff, I know.
The point is, the problem Kipp and Soper have identified is solvable– but the bill they have introduced to solve it is the legislative equivalent of a barrel bomb, more assured to wipe out critical infrastructure than to hit its actual target. Furthermore it isn’t the only attempt at curtailing legislative transparency this session. Democrats have also introduced two bills addressing how Colorado’s open meetings law applies to the statehouse.
The nice thing about states is that there are 50 of them. 49 others have also wrestled with striking the right balance regarding transparency, accountability, and access to public records. Some are doing a significantly worse job than Colorado. Some, like California, are leaps and bounds ahead, providing instant access to a whole host of public records via online databases, where requests can be made and payment can be remitted without ever wasting the time of an underpaid public servant. Better things are possible.
No one needs to reinvent the wheel here, but we’d be out of our minds to shatter it to fix a spoke. CORA can and should be fixed without abandoning the principles which inspired it. That is the legislature’s job, to reform flawed laws, and to do so while in the spotlight of public scrutiny. If a lawmaker does not find that to his liking, perhaps he would be happier returning to private citizenry.
