Refining Colorado’s Open Records Laws Garners Strong Debate

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Advocates say Senate Bill 40 does something simple: It brings the Colorado Open Records Act into the 21st century by requiring state agencies to provide information in a digital format , such as a database or a spreadsheet, where feasible.

"These are the people's records. We are the custodians, we are the stewards of these records," said Democratic Sen. John Kefalas of Fort Collins. He's the main sponsor of the bill.

For some, the issue is more complicated.

A similar measure proposed last year failed amid concerns about costs and privacy, such as how to handle sensitive personal information that could be contained within a file. For the last year, a bipartisan group has worked on ways to address those issues.

"Too often we in government don't make information easily accessible to people," said Republican Secretary of State Wayne Williams, who was part of the working group. "This bill makes it easier for Coloradans to get the documents in a format that they can use. And it's not always for government to say, 'Oh, I don't like what you might do with that information.' It is the public's data."

The proposal comes with many stipulations in which digital records aren't required: if it's not technologically possible; if private information can't be removed; if special programming is required; or if it could cause safety or security problems. Still, some remain wary of releasing information digitally, including many schools, colleges and even water districts. 

"You create a situation where an entity could go out and look for multiple weak points in the system, and attack them," said Doug Kemper, the executive director of Colorado Water Congress, a statewide water advocacy group. He worries that the bill would put the state's water infrastructure at risk.

Others fear agency staffers could make mistakes and accidentally release confidential private data that is not subject to open records law, such as health information. 

"What I'm nervous about is the small Kit Carson county clerk who is going to think they they've redacted something," said Eric Bergman with Colorado Counties Inc., a nonprofit that represents county commissioners. "Even when you delete something, sometimes it's not really gone, which just keeps me up at night. It haunts me."

Democratic Sen. Steve Fenberg of Boulder said mistakes could still happen, as it is common practice for an agency to simply print information from a database when an open records request is filed.

"To me, in some ways, it seems like making a ton of photocopies, and having various pages that a social security number could exist on, is just as likely to accidentally result in providing that information if not more likely," he said.

SB 40 has its roots in a conflict that happened two years ago between the Fort Collins Coloradoan newspaper and Colorado State University. Lauren Gustus, the newspaper's chief editor, said the paper asked for data on salaries and was told to go to the library, "where a 145-page document with nearly 5,000 names and salary figures was being housed."

The newspaper then requested a copy of the university's electronic spreadsheet, but that request was denied. Gustus said a reporter spent three weeks creating a database from the printed document. Advocates for the bill argue that it shouldn't be difficult to access information that is legally public and contained in a simple file.

Sen. Jon Kefalas talks to reporters before the hearing. He said he was cautiously optimistic the bill would pass its first committee. It had already been delayed twice.
Credit Bente Birkeland / Capitol Coverage
Sen. Jon Kefalas talks to reporters before the hearing. He said he was cautiously optimistic the bill would pass its first committee. It had already been delayed twice.

SB 40 passed its Senate State, Veterans and Military Affairs committee hearing with a 4-1 vote. The lone "no" vote, cast by Sen. Jerry Sonnenberg [R-Sterling], called the measure a nightmare. Most of the other committee members--two Republicans and a Democrat--voted in favor for now,  but expressed qualms.

Mike Krause, with the right-leaning think tank the Independence Institute, criticized politicians for dragging their feet. He hinted at a statewide ballot initiative should things fall apart.

"There's a stakeholder group that has not had its hand on this bill yet, and that is the voting public," he said. "And my experience says the Colorado public is much, much more supportive of transparency, than are many of the stakeholder groups within this building."

While it cleared its first hurdle, advocates said the bill's long-term fate is uncertain. The hearing had already been delayed twice over concerns, and a side issue tangentially related to the bill led The Grand Junction Daily Sentinel to threaten a defamation lawsuit against the committee chairman Ray Scott. 

Supporters said several last-minute amendments also might derail it, including one that would expand the open records act to include the Judicial Department, and another that could make fewer government records open to the public. Supporters said they plan to assess the impacts of those amendments before the bill's next debate.

Capitol Coverage is a collaborative public policy reporting project, providing news and analysis to communities across Colorado for more than a decade. Fifteen public radio stations participate in Capitol Coverage from throughout Colorado.