DENVER — This lawmaker is exchanging late-night texts with a pot-industry lobbyist. That lawmaker is instant-chatting from his Gmail account with an insurance industry executive. And in New Jersey, a governor’s staffer sends a message to a Port Authority pal asking him to shut down four lanes of traffic and cause an historic and eventually notorious bottleneck.
The thinking behind open records law is that the public should enjoy access to those kinds of communications, because they clearly form part of the record of how our democracy works. But communication in the digital age happens at lightning speed on all variety of platforms. Messages multiply. One brings another. Then more come and bring more until they pile up like grains of sand in the Sahara. Can we really expect officials to keep them all and to deliver them in digestible chunks in a timely way upon request?
Colorado’s open-records laws, passed in the late sixties and early seventies, were some of the first passed on the state level in the nation and, as Colorado Ethics Watch puts it, they are “showing their age.”
“They haven’t kept pace with the times,” reads a recent report from Ethics Watch. “They suffer from pre-digital age thinking to the detriment of citizens and government officials alike.”
At the capitol in Denver, daily practice and attitudes toward messages evince a mix of casual indifference and de facto opposition to retaining emails and texts. The feeling is generally that saving the records for public perusal is technologically burdensome and would likely hamper efforts to hammer away at problems in sometimes personal ways and get things done.
More than that, Legislative Legal Services advises legislators that “best practice is to delete all email within thirty days after you have received or sent it, unless there is an overriding reason to retain it for longer… Any email you retain may become the subject of an open-records request.” The policy also allows legislators to establish their own rules entirely, as long as they put them in writing.
Lawmaker staff on the right and left confirmed that, in practice, most everyone working under the dome “reads and deletes” virtually all of their emails. They cite the sheer volume of emails they receive as the deciding factor.
Representative Jeanne Labuda, D-Denver, noted that over the Martin Luther King Jr holiday weekend she received 600 emails. Senator Ted Harvey, R-Highlands Ranch, said he received 700 emails in a single day that same week, many from California residents.
“I get rid of most everything within the month,” said Labuda. “I don’t think I save anything indefinitely because almost everything I get pertains to bills. Once those bills are passed, I delete the emails.”
Harvey said he believes legislator emails should be accessible to the public, but he added that he keeps his own archives to a minimum.
“I wouldn’t say I don’t keep anything,” he said. “If it’s a major issue and I want to be able to communicate with those people in the future, I might keep an email around for more than one session. But for the most part, if it’s ‘vote yes on … whatever,’ then I don’t keep that.”
Representative Joe Salazar, D-Thorton, who’s currently sponsoring a bill to standardize open-records fees, said that even most of the emails he decides to archive shouldn’t be considered public records.
“It’s the final product that matters, not necessarily what went into it,” he argues. “Courts will take a look at the final product, the legislation as it was introduced, not the work product. There’s policy reasons why that work product leading to final product is exempt, because so much changes by the time the bill is finally introduced.”
Work product, which includes informational briefs prepared by legislative staffers, for example, does exclude a large portion of legislator correspondence from open records requests. In fact, state legislator records are among the least publicly available government documents (though not less than the documents produced by Congressional offices, which are not held to open records laws at all).
Colorado’s sunshine law requires legislators and all public employees to produce notices and minutes for all meetings. But what defines a meeting, particularly in our digital age, has become an increasingly complex question.
“If you’re talking about two legislators discussing public business in whatever form, it says in the [sunshine] policy that’s a meeting and should be covered,” said Jeffrey Roberts at the Colorado Freedom of Information Coalition.
General Assembly policy on digital open records notes that some emails can be considered public records, but it doesn’t specifically address many of the other ways legislators might communicate about public business — for example by texting one another. In fact, Colorado’s law currently makes no specific reference to whether text messages between officials might be considered public records. That’s a gap legal advisors at the capitol are aware of and say may need to be updated.
Other states have already taken notice and some have taken action. The Texas General Assembly last session, for example, passed a bill declaring that any electronic communication, regardless of device used to convey it, may be considered a public record.
At very least, observers say, Colorado would benefit from more clarity.
“This system is a mess,” said Toro, noting that the same kinds of questions extend to public employees at work well beyond the legislature in offices across the state.
In New Jersey, Governor Chris Christie’s office resisted releasing the emails that eventually exploded into the Washington Bridge/Fort Lee traffic jam scandal. Staffer emails and texts were ultimately wrenched into the light through subpoena. Among the many questions turning around the governor now is whether his staffers violated public records law when they told the Bergen County Record, the paper requesting the emails, that there were no records that matched the paper’s request.
It’s possible Christie’s staff was following its own read-and-delete policy or that staffers were confused about how public records law applied to emails sent from private accounts. Colorado open records law experts say the state’s outdated laws and policies in place like those at the legislature could breed similar confusions.
“You read through the [General Assembly’s] policy and it’s essentially saying: Get rid of these emails within 30 days,” said Roberts. “But then they make reference to the state archives policy, which says you should keep theses things forever. So there’s a kind of disjunction there: What do they really want?”
About one thing the current policy is very clear — it advises legislators that “there is no statutory requirement that any email be retained as a public record.”