As one of his first official acts, President Barack Obama issued an executive memorandum instructing members of his administration “to operate under principles of openness, transparency and of engaging citizens with their government.” There are a number of ways Colorado state and local government can follow suit and join the president in his commitment to an “unprecedented level of openness in government.”
To begin, the Colorado General Assembly should immediately adopt and implement a uniform policy for the members and their staff, setting minimum standards and guidelines for the retention of electronic records, including e-mail records in particular. Incredibly, there is currently no policy at all.
Instead, without any minimum requirements, members are encouraged to develop their own individual policies on retention of e-mails, make their own determinations as to what records are public, and regularly delete records that they think do not qualify as public.
As a result, the public has no way of knowing from one legislator to the next what to expect of a member’s electronic records, and an untold number of records get lost or deleted.
Next, the Legislature should reduce the high cost of inspecting public records by adopting a fee waiver in the Colorado Open Records Act. Although the Legislature recently reduced the maximum allowable charges for copying records obtained through CORA from $1.25 to 25 cents, voluminous record requests and additional retrieval expenses can create a barrier to public access.
The Legislature should adopt a fee waiver much like the one provided under the federal Freedom of Information Act. According to the federal waiver provision, documents are provided without any charge “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor.”
The absence of a waiver provision in CORA means that government transparency exists only for those who can afford it and strains the budgets of nonprofit groups acting on the public’s behalf such as Ethics Watch.
The Legislature should also set maximum limits on the amount of fees allowed to be charged for time spent by government employees retrieving public records. On numerous occasions, Ethics Watch has faced charges from hundreds to thousands of dollars simply to inspect documents it requested under CORA. These charges often cause citizens to abandon their requests. A cap on charges for time would also recognize that responding to open records requests is a fundamental responsibility of our government.
Our elected leaders can make considerable strides toward “openness, transparency and engaging citizens with their government” by taking these simple steps.
Chantell Taylor is the is the director of Colorado Ethics Watch. Her legal practice has focused on litigation and political and election law. She is a graduate of the University of Denver College of Law.
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