Editorial: Fickle implementation of open records law
Colorado’s open records laws are weak, frustrating and, now we know, fickle.
For example, even though it is 2015 and many records have been kept in electronic databases for many years, Colorado lawmakers rejected an effort this year that would have updated the law to reflect modern recordkeeping.
As Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, wrote about existing law, “requesting databases and spreadsheets is a crapshoot in Colorado. “
“Governments will say they are not required to manipulate existing records in response to a request. If the data set you want contains something confidential, such as Social Security numbers, you might be denied access to all of the information. Instead of excluding the confidential field and releasing the remainder, the government chooses to release no records at all.”
Or you might be charged a ridiculous amount of money for hand-redacted printouts that require far more work of bureaucrats than is technologically justifiable.
• The Legislature also rejected an effort to make investigative files on Colorado judicial department employees subject to CORA, as are employees of other agencies.
• Law enforcement is given remarkably broad discretion to deem something an investigative record exempt from public scrutiny.
• A former employee of the Colorado Department of Revenue and former FBI agent says he and others were ordered to destroy emails about the department’s handling of a CORA request.
DOR, which in our experience makes open records requests as difficult as possible, denies the allegations by Dan Bradley, who told Complete Colorado he’s concerned that actions that reduce government transparency erode public confidence in the trust between the people and their government institutions.
That’s exactly the point.
This is your government, and it’s your money being spent, whether that’s on promoting the lottery and disbursing its proceeds; running jails and courts; or buying land for a public project.
For that reason, the Post Independent asked the Colorado Department of Transportation how much it paid for the Glenwood Shell station property that is part of the new Grand Avenue bridge footprint. The station site is now a pile of dirt and rubble — it looks like it’s changed hands.
Getting an inventory of how much CDOT paid for properties obtained for the project was something we planned to do, and the discovery of diesel-contaminated soil in the area reminded us to ask.
While reporting the spill story, we learned that it’s impossible to tie the pollution to any particular gas station, which used to be numerous in that area. Still, the sale price is a matter of public interest. How much of our money went to a linchpin piece of local property?
Here are excerpts of our email exchange with CDOT:
Initial response: “The Colorado Department of Transportation is not in possession of any documents responsive to your request at this time. Because the purchase of this property is part of an active project, the sale agreement is not considered a public record under the CORA statute.”
To which we replied: Do we “understand your response correctly that even though the property is purchased and razed, the sale agreement is not a public record until the entire bridge project is finished in 2018?”
CDOT records request officer Andrew Hogle replied: “My understanding is that once the entirety of the property management/negotiation/purchasing process is completed and construction is underway, documents like this sale agreement would likely be considered to be a public record under CORA at that time, even though the project itself would still be considered ‘active’. … While I cannot predict how long the negotiation/purchasing process will take, a best guess would be approximately 12 months from now — but to be clear, that’s merely an estimate.”
Being both puzzled and persistent, we emailed Hogle, who, to his credit, was trying to be helpful and had to work within parameters of the agency rules: “Since construction is well underway and the property is razed and being excavated, it’s hard for a layman to understand” how the deal is not complete.
CDOT spokeswoman Amy Ford called back. The agency’s reasoning is — and it has legal authority for this position — that it doesn’t want to release right of way or other purchase amounts if it is still negotiating other deals.
CDOT was more responsive, frankly, than some other agencies with which we’ve dealt. At least the state explained its reasoning for this position, even if it’s silly.
The property sale was recorded with Garfield County. Lawyers for any neighbors of the former Shell site are going to go to the Clerk and Recorder’s Office and find the information. It’s not necessarily easy, because a search by address doesn’t work (in fact, county records already show that 106 Sixth St. no longer exists).
But the sale is a public record, as it should be. The fact that a document that’s public at the Garfield County Courthouse is not considered public by the agency that actually shelled out your money illustrates our point. It shows how implementation of CORA contradicts the spirit of the law and makes it difficult for the public to gain basic information about the operation of our government and spending of our money.
By the way, CDOT paid $1,315,000 for the old Shell station, less than is being rumored around town.