A bull market: The rising cost of public records
It’s hard enough for folks to stay informed about what our government is doing – the demands of work, family, and binge-watching Netflix can take most of our time and energy. Even when Coloradans make an effort to educate themselves on important issues in our communities, they face roadblocks to information.
In many counties, budgets and spending information aren’t posted online, and are only available during office hours. Court records in death penalty cases have been sealed, even though journalists reported from the courtroom during those trials. Government officials operate under “read then delete” email retention policies, erasing messages that helped form major policy decisions.
Beyond these barriers is another set of impediments limiting access to public information. Many city, county and state government offices are charging increasingly high fees for public documents in a state that helped pioneer the national movement for government transparency and unfettered access to public records. The 1969 Colorado Open Records Act (CORA), the state’s so-called “sunshine law,” was enacted to guarantee access to public documents, but didn’t address whether – or how much – we should have to pay for records generated by our governments.
Over the decades, the statute has been revised to include specific fees that can be charged for photocopies of records or manipulation of data. But revisions haven’t addressed whether the public can be charged for the time it takes a government employee to gather and produce public records. Courts have developed some limits on what can be charged – stating that a “nominal” research and retrieval fee does not violate the spirit of CORA. But the question is “what’s nominal?” While some government entities charge no fees at all, my research across the state has found fees as high as $49 an hour for gathering and providing public records.
Even worse is the unpredictable nature of some of these fees. After seeing a blank line for “research fee” on the Pueblo City open records request form, I called the clerk’s office for clarification. I was told that the charge depends on the hourly wage of the city employee who handles the CORA request. In other words, the value of certain public documents is randomly tied to earnings of whichever functionary is assigned the task of finding, photocopying or scanning the requested records.
Charging for public documents has a chilling effect. Fees are rising high enough to make citizens and journalists stop asking questions. They also tilt access to information in favor of wealthy Coloradans or reporters with for-profit rather than non-profit news organizations.
Last year, a Colorado Springs Independent story explained that it stopped investigating potentially improper actions by city council members when it was quoted more than $300 in fees to review two weeks’ of emails under CORA. I was recently contacted by a local activist in Green Mountain Falls who requested budget details for the town’s law enforcement department and copies of recent correspondence between town board members and employees regarding the controversial decision to close the local police department. She told me that she felt pressured to withdraw her request because the initial response to her CORA from the town attorney estimated a charge to exceed several hundred dollars. In her case and too many others, it’s clear that some government custodians are using hefty fees to deter public scrutiny.
The General Assembly is considering legislation to require government agencies to adopt and publish set schedules for “research and retrieval fees” under CORA and to cap the hourly amount they can charge.
At both the House and Senate committee hearings, Common Cause, Ethics Watch and the free-market Independence Institute – three of the state’s most active watchdog groups – testified in favor of limiting fees. In turn, associations of government officials first opposed the bill as too costly, and then reluctantly shifted to “neutral” when the bill’s caps on fees were raised. The legislation passed the House on a bipartisan vote and was sent to the Senate floor yesterday after being amended to cap fees at $30 per hour and require the first hour of retrieval to be provided without charge.
I write this during what’s known as “Sunshine Week” when foundations and media organizations throughout the country spotlight open government issues and promote access to public information. Here in Colorado, we like our sunshine, literally and figuratively – and we like it all year long. Transparency keeps our governments accountable to an informed citizenry. As is clear from who’s supporting the current legislation, Coloradans from all ends of the political spectrum can agree on the importance of access and accountability. Watchdogging should be free, or at least affordable to all of us. The price of not paying attention would be too high.
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