A view of the Colorado House of Representatives on April 19, 2023. (Quentin Young/Colorado Newsline)
The Colorado Legislature is a pretty polarized place, but if there is one area where you can count on bipartisanship at the Capitol, it’s aversion to transparency.
We live in an open society. We have a government for the people. Government business that is conducted in open view to the governed is therefore inherently superior to opacity. Public information should be as accessible as possible. Public policy should be formed with maximum openness.
There are reasonable exceptions — government information related to legal advice, certain personnel matters, law enforcement investigations and other sensitive topics demand secrecy, and there’s no real argument that absolute transparency would serve the public good.
But exceptions must clear a high bar. When government officials fail to uphold values of transparency, public trust erodes.
Democrats and Republicans are risking that outcome.
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How? Look at the bipartisan House Bill 23-1259, which would significantly reduce transparency around closed-door meetings of local public bodies, such as school boards. For more than 20 years, a provision in the state’s Sunshine Law required local public bodies to publicly announce “in as much detail as possible without compromising the purpose” of the authorized closed-door meeting what the officials plan to talk about in secret. “Topic specificity” acknowledges both the legal justification for an closed-door “executive session” and the public’s right to know as much as possible about the meeting’s purpose.
Members of the public who believe a local public body has inadequately announced a closed-door meeting have the right to challenge it in court. But this legislation would in effect eliminate this option. It would let the local public body “cure” an errant executive session announcement by revising it after the meeting has occurred, and it would let the public body collect court costs and attorney fees from unsuccessful plaintiffs. The threat of this penalty, which could total tens of thousands of dollars, would surely dissuade many people from challenging Sunshine-defying officials. The bill would allow “intentional secrecy in violation of the law,” Eric Maxfield, a Colorado Freedom of Information Coalition board member, testified to lawmakers.
The bill has passed the House and is due to be heard by a Senate committee today.
Members of the public have a right and responsibility to assess the performance of government officials, and open meetings and public records are essential to doing so.
Here’s another example: the bipartisan Senate Bill 23-286, which reforms parts of the Colorado Open Records Act, or CORA. Several provisions of the bill are welcome improvements. If the measure is adopted, records custodians will be barred from requiring requesters to produce an ID, and custodians will have to accept credit cards or electronic payments if they do so for other products and services (yes, some agencies, in 2023, mysteriously refuse to take credit card payments for public records).
But the main item that transparency advocates had hoped the bill would address is the rising fees that agencies can charge for public records. High fees can effectively bar access to records, even for journalists, and the bill does nothing to address them. CORA sets the maximum fee for research and retrieval of records, which is pegged to inflation and adjusted every five years. The maximum is currently $33.58 per hour, with the first hour free, but that could rise to at least $38 per hour next year.
“Going into this process, addressing the rising fees charged to requesters was our top priority,” Tim Regan-Porter, CEO of the Colorado Press Association, said. “Unfortunately, after months of discussions with multiple parties, we could not get enough support from other entities to present a bill that addressed costs and would be likely to pass.”
In some ways, members of the Legislature already avoid transparency themselves. Democratic leaders, who command substantial majorities in both legislative chambers, in recent years have used a secret online survey to determine which bills that spend money advance or die. After journalists and transparency advocates pointed out how the survey appears to violate the Sunshine Law, leaders adjusted their methods this year by releasing the bill-ranking results of the survey. But they again refused to release how individual lawmakers responded to the survey — the very information constituents would want to know.
This is a dismaying streak of anti-transparency at the Colorado Capitol.
Members of the public have a right and responsibility to assess the performance of government officials, and open meetings and public records are essential to doing so. But too many developments at the Legislature are limiting their ability to fulfill that role.
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