It is a bill good-government activists were supposed to get behind enthusiastically.
Freshman Rep. Brittany Pettersen’s House Bill 1041 (pdf) seeks to heighten public accountability by updating the Colorado Open Records Act. Her measure would prevent officials from requiring that people who ask for public documents review them in person before receiving copies. It was a legislative update activists applauded, until they read the bill, which they now decry as being ambiguously worded and ripe for abuse.
“It’s been a frustrating experience, even if it’s all part of the process,” said Pettersen. “It’s unfortunate, I think, on one level, because lawmakers in the future may be less willing to take up issues related to the Open Records Act and, on another, because the activists are right to see larger issues that need addressing.”
Marilyn Marks, founder of Aspen-based Citizen Center and a lightning-rod figure for controversy tied to records access, originally supported Petterson’s effort but is now leading the charge against it. In a letter to the editor published in the The Colorado Statesman last week, Marks called Pettersen “petulant” for not meeting with activists, and called House Bill 1041 an “anti-transparency bill.” She believes lobbyists have worked to include language in the bill that would make it possible for obstructionist records custodians to charge high fees to records seekers and shut down meaningful document review.
Veterans of battles over the Open Records Act are unsurprised by the suspicions rising up around the bill in the activist community.
Steve Zansberg, a top media attorney in the state and one of the architects of the bill, said it makes sense that government accountability champions like Marks guard their right to access vigilantly and are wary of any proposed changes to records laws — even changes they may have initially supported.
“I understand folks who have had bad experiences with records custodians and so come to the bill with suspicions. They see vague language and they view that vagueness as a ‘trap for the unwary,’” he said. “But all language is susceptible to abuse. No legislation will work 100 percent of the time to protect against bad faith.”
Katie Fleming, Colorado associate director of government accountability group Common Cause, was also not surprised by the heat the bill has drawn.
“The Open Records Act is one of the most effective ways the public has to hold officials accountable and to make sure laws are working. It’s just going to generate lots of interest every time you talk about it,” she said.
Producing bodies for reviewing records
Pettersen, a Lakewood Democrat, introduced her bill to address a part of the law that today can seem galling. In the era of Federal Express, global file-sharing and everywhere e-mail access, why require people to collect documents in person?
Activists say the motivation is to stall or shutdown disclosure. They say that, in the cat-and-mouse game sometimes played around the Open Records Act, requiring in-person review forces requestors, depending on circumstance, to take time from work, drive hundreds of miles, feed parking meters and pay for lodging in the city or town where the records reside. Frustrations are compounded by the fact that, in the digital era, people routinely pass documents back and forth without ever having to stray from their computers or mobile phones.
The origin of the new legislation, according to Zansberg, is tied in part to a records request filed last December by Matt Haag, a reporter for The Dallas Morning News. Haag asked Colorado Springs-area school districts for documents detailing salary information for former employees who were applying for jobs in the Dallas region. Haag was informed (pdf) by Kelly Dude, an attorney representing the school districts, that Colorado’s Open Records Act was a “document inspection” law not a “document creation” law. Dude explained that Haag was welcome to come from Texas to inspect the documents, if he wanted to, but that the school districts were under no obligation to make copies of any documents to send to The Dallas Morning News or anywhere else.
Zansberg said Dude’s reading of the Open Record Act disdainfully put the letter of the law over the spirit of the law. He said it was just one of the examples of a kind of obstruction that compelled lawmakers, including Pettersen, to act this year.
But former Colorado Clerks Association President Gilbert Ortiz, whose Pueblo County still requires in-person inspection of all records requests, cautions that, even though the in-person requirement can be abused and can seem anachronistic, it still makes sense in some instances. The point is to allow document seekers to select only the most relevant documents from a search for copying and delivery.
“Sometimes, what someone is looking for can be like a needle in a haystack,” he said. “Do they really want us to send all the records?”
He said not all resistance to open records requests should be viewed as nefarious. Mostly, he said, perceived resistance has to do with workload.
“You have to consult with the county attorneys and then assign staff to fulfill the request. It takes man hours — a lot of man hours. We probably got 20 records requests during the presidential election season, and this is a hotly contested county. You know, someone asks to see all the emails from me on a House bill, for example. That’s tough.”
The problem with Pettersen’s bill, according to critics, is it doesn’t just address in-person-only access questions. It also attempts, mainly in one long sentence, to outline the costs officials can charge to document seekers.
Within the period specified… the custodian shall notify the record requestor that a copy of the record is available but will only be sent to the requestor once the custodian receives payment for the postage if the copy is to be transmitted by United States Mail, or payment for the cost of delivery if the copy is transmitted other than by United States Mail, and payment for any other supplies used in the mailing delivery, or transmission of the record and for all other fees lawfully allowed, unless imposition of a fee has been waived by the custodian.
It’s that freight-train of a sentence, already amended once, that some activists scorn. The reason is that, as a weapon in the battle between records custodians and requestors, in-person-only access pales in comparison to the price-tag officials can attach to requests. The costs can add up quickly and they can be hard to verify as legitimate.
Common Cause was one of the stakeholder groups that came together to draft the bill with Pettersen. Other stakeholders included the Colorado Press Association and the Municipal League.
“We tried to increase access by placing into the law more ways to transmit documents,” Fleming said, adding that allowing for additional costs seemed fair to requestors if the costs were already lawful under the current act.
Luxury-priced text messages
Marks believes the last section of the bill’s lengthy and controversial sentence, with its “any other supplies” and “all other fees lawfully allowed,” will encourage reluctant officials to charge additional fees.
“How much will it cost the citizen or the newspaper or blogger for the county to remove snow from the roof above the room where the documents are held or to shovel the sidewalk to the mailbox?” she said. “C’mon, we’ve seen how this kind of thing can go awry.”
Marks points to recent examples of high-cost records searches.
In December, city officials asked The Colorado Springs Gazette to pay $3,575 for 800 police reports. The Gazette, looking into the use of force in arrests, begged off.
Last month, Jim August, a retired aerospace engineer and Boulder County election watcher, requested any documents that might demonstrate the accuracy of a $200,000 ballot-sorting machine on contract with the county. He wanted to know whether the machine had been tested and, if so, what the test looked like and whether the machine passed. The county told him it would take 250 hours of research and redacting work to fulfill his request at a cost of $7,500, and that he should also expect to pay $0.25 per page to copy the thousands of pages the county was sure would be relevant. August is thinking of other ways he might find out about how the machine has performed.
Also last month, the City of Salida told citizen Steve Tafoya it could not produce a record of the email or text messages officials and staffers sent to one another during a city council meeting. Tafoya wanted a record of the “online meeting” he thought might be influencing the “offline meeting.” Salida asked him for $1,900 to retrieve any messages that may have been sent. Tafoya didn’t pursue the issue.
In the fall of 2011, blogger Elizabeth Milias asked the Aspen-Pitkin County Housing Authority for transaction documents on any foreclosed public housing single-family properties. County staffers asked for $974 to complete the request. Milias looked for other ways to answer her questions.
The lesson the watchdogs have learned is that transparency can be expensive.
No perfect bills
Zansberg noted that Pettersen’s bill passed with strong support in the House and likely will meet with strong support in the Senate, where members will begin to hear the bill this week. He hopes activist concerns can be addressed.
“Is it a perfect bill? No,” he said. “But the point of the legislative process is to make it more perfect, to make the language as clear and precise as possible. Bills can always be improved.”
Common Cause’s Fleming downplayed concerns about the bill’s language, but she agreed there’s a record of competing interpretations when it comes to open records law.
“That’s kind of the nature of it. You never know how these things will be put into practice on the ground,” she said.
It’s the kind of deadpan comment on the bill that has been driving the activists crazy. You could see it as simply a realist’s take shaped by long experience at a national nonprofit working for government accountability. Or you could see it, as the activists do, as a resigned or soft position, or both.
“If we’re all seeing different things, let’s do whatever we have to do to clear it up on the front end,” said Marks. “Why leave it to controversy and litigation? If we want to increase costs for requestors, we can have that conversation. But why leave it up to interpretation in the field?”
John Kefalas, a Fort Collins Democrat, is the bill’s sponsor in the Senate. The bill will be heard in the Senate’s local government committee today.