Opinion: Government By Text

New State Law Leaves Public In The Dark

By Steve Zansberg and Jeffrey A. Roberts
Colorado Freedom Of Information Coalition

Irony is the juxtaposition of one conceptual proposition with a directly contrary reality, like a “vegetarian butcher” or something that’s “seriously funny.”

Or the swift enactment — during Sunshine Week — of a new state law that lets members of the Colorado General Assembly discuss and formulate public policy outside of public view.

You heard that right. This legislative session lawmakers and Gov. Jared Polis chose the very week in March in which journalists and transparency advocates annually celebrate federal and state open-government laws to essentially exempt the state Legislature from much of the Colorado Open Meetings Law.

The open meetings law, approved by voters in 1972, declares it is “the policy of this state that the formation of public policy is public business and may not be conducted in secret.”

The law is meant to provide “the public access to a broad range of meetings at which public business is considered; to give citizens an expanded opportunity to become fully informed on issues of public importance, and to allow citizens to participate in the legislative decision-making process that affects their personal interests.”

We acknowledge that some provisions in the 52-year-old law require updates as they pertain to the business of the state Legislature. But Senate Bill 24-157, approved on March 11, was rushed. Some organizations, including the Colorado Freedom of Information Coalition, were excluded from the sponsors’ stakeholder process. Our suggested amendments were ignored.

The bill, signed into law by the governor just a day later, goes too far and will undermine public confidence in the Legislature’s actions.

The new law legalizes legislators engaging in discussions of pending bills — via emails, text messages, phone calls or in-person meetings — not have to provide notice to the public or keep any minutes of such policy-making conversations. In other words, the public will be left in the dark about legislation that affects them directly.

Don’t worry, elected officials tell us, because those emails, text messages, etc., between lawmakers are accessible, after the fact, “pursuant to the Colorado Open Records Act.” (CORA) That’s what the newly passed law says. But here’s the catch: CORA declares that all communications by, or “assembled for” any state legislator that “relates to” the drafting of bills or amendments are not public records at all. So, there’s no need for legislators to hold onto — much less to make public — those electronic written communications, because they are not public records.

It is safe to assume that more than 90 percent of all future discussions of potential bills, amendments, appointments, resolutions, rules, etc., in our state Legislature will occur outside of public view. Not only will such policies be far more likely to be the product of backroom wheeling and dealing, but even ordinary non-tainted policies will rightfully be subject to suspicion and skepticism by the general public.

Forty-one years ago, Colorado’s Supreme Court held that legislative caucus meetings must abide by the open meetings law, stating that the act was “designed precisely to prevent the abuse of secret or star chamber sessions of public bodies.” By exempting the General Assembly from a transparency law applicable to every other public body in the state, legislators have greatly reduced the level of public trust in that institution and cast a veil of secrecy over whatever legislation is  produced.

Ironic for sure that this happened during Sunshine Week. And a sad day, of any week, for the people of this state.

Steve Zansberg is president of the Colorado Freedom of Information Coalition. Park Hill resident Jeffrey A. Roberts is the executive director of the organization, a nonpartisan alliance that promotes freedom of the press, open courts and open access to government records and meetings.

Editor’s note: State Sen. James Coleman and Reps. Jennifer Bacon and Leslie Herod — all of whom represent portions of Park Hill — sponsored and supported the bill. Last month Jon Caldara of the libertarian Independence Institute announced plans to pursue a November statewide initiative to repeal the new law.