A government of the people is transparent, with its records open to the people. But sitting in the middle of Colorado government is an enormous shredder, and officials keep it running every day at all hours. State government during the pandemic performs functions that, for the people on whose behalf it operates, are literally a matter of life and death, and records that could shed light on the success or failure of the state’s response to COVID-19 belong to Colorado residents. But good luck claiming your property. There’s a good chance it’s already destroyed.
The Denver Post reported this week that the state health department as a matter of routine policy has deleted emails to and from officials, including state epidemiologist Rachel Herlihy, who work on pandemic response. This comes after almost two dozen news organizations in April made a special request that such communication be preserved, since the communication “will become particularly important in the future … to determine what we can learn from the response,” and, more significantly, after the state archivist in June asked state offices to preserve records, including emails, related to COVID-19.
Under the Colorado Open Records Act, state “writings,” including emails, with certain exceptions, are public records. Members of the public ought to be able to inspect the email correspondence of government officials when those emails contain discussions of government business, the law says. So far, so good.
When it comes to preserving those records, however, the law merely directs custodians to “adopt a policy regarding the retention, archiving, and destruction of such records.”
State officials looked at that line and saw only the word “destruction.” Without a legal minimum retention period set out in the law, many state agencies chose to minimize public access to the public’s own records.
The Post last year documented the state’s shocking bad faith when it comes to records retention. It found that six of 22 state departments and offices had a policy directing employees to delete emails after just 30 days. One of those six departments is among the state’s largest: corrections. Another is its most influential: the governor’s office. Other agencies deleted emails after only two or three months.
The language of the open records law — “All public records shall be open for inspection” — implies that a rush-to-delete policy violates at least its spirit (how can you inspect a record that no longer exists?). What’s clear is that custodians of certain Colorado public records, instead of taking reasonable steps to preserve records on behalf of Coloradans, are intentionally obscuring public business from public view.
The email deletion policy is one subplot in a larger story of the state’s anti-transparency practices. For example, records custodians had long charged exorbitant fees for fulfilling records requests, even though such fees were supposed to be “nominal.” So in 2014 the Legislature stepped in and passed a law that capped the fees custodians could charge for “research of retrieval” when responding to records requests. The cap was initially set at $30 per hour, and now it’s $33.58. How did custodians respond to this limitation?
“Government bodies show a strong tendency to adopt the legislative cap as their research-and-retrieval fee, and they often multiply that rate by many hours in fulfilling requests,” wrote researcher Justin Twardowski in a report for the Colorado Freedom of Information Coalition. The new law proved no match for the anti-transparency motivations of government officials, who apply “unaffordable charges that stymie the public’s access to public information.”
Government officials work for the people. Their salaries are paid with the people’s money and every function they perform involves the people’s money and invokes the people’s trust. Every record they create and keep belongs ultimately to the people. Imagine you hired an accountant who barred you from access to records of your assets. Would you stand for that?
This isn’t just a matter of abstract principle. Transparency is the only way a democratic people may gauge the performance of their government. It is how they detect and punish corruption and highlight and reward competence. And in few other government activities has competence been so vital as in the public health response to the coronavirus. Media reporting through open records requests has already revealed stumbles in Colorado’s early response to the coronavirus, such as the state public health “brain drain” described in a July report from CPR. Coloradans, now and in years hence, are entitled to transparency around government efforts to protect their lives.
The Legislature starts a new session in January. Lawmakers should consider ways to ensure government emails aren’t destroyed before their value as public records expire, and they should try again to preclude records custodians from charging such high fees that records are effectively kept secret.
In the meantime, the state health department should listen to the government’s own archivist and preserve, beyond standard policy, material related to COVID-19. Officials should not need the force of law to bind them to such a practice. They need only an interest in serving the greater imperative of public trust.