Open records bill also opens Pandora’s box

Opponents claim HB 1041 lacks transparency, but Senate committee passes it on party-line vote
The Colorado Statesman

A well-intentioned bill that aims to make it easier for the public to obtain public documents under the Colorado Open Records Act has caused a kerfuffle. Activists claim that House Bill 1041 secretly seeks to empower dubious records custodians to charge exorbitant fees in order to pad government budgets and block transparency.

Sponsored by Rep. Brittany Pettersen, D-Lakewood, and Sen. John Kefalas, D-Fort Collins, the measure has already cleared the House and made it through the Senate Local Government Committee on Tuesday. The party-line vote was 3-2.

The measure would prohibit records custodians — including county clerks — from requiring that people requesting documents under CORA have to show up in person to collect their documents. Custodians would be allowed to use forms of transmission such as the post office in order to deliver those documents.

HB 1041 also bans assessing fees for delivering CORA-related documents by e-mail.

But the bill is clear that records should not be delivered until payment is received, stating: “Custodian shall notify the record requester that a copy of the record is available but will only be sent to the requester once the custodian receives payment… for all other fees lawfully allowed…”

Open government activists such as Marilyn Marks, founder of the Aspen-based Citizen Center, believe the measure opens the door for custodians to abuse public trust by charging unnecessary fees.

Marks is a bit of a rabble-rouser in the government transparency world. She made her mark after an unsuccessful run for Aspen mayor in 2009. She ran into trouble when she requested ballots from the city to review returns in the mayoral race. She sued the city for refusing to release the images, and she won on the appellate level. Since then, Marks has filed multiple elections lawsuits against the secretary of state and county clerks throughout Colorado. Given the number of CORA requests Marks submits, she decided to speak up against HB 1041.

“It amounts to a poll tax,” she said of the legislation, likening it to a voting fee placed on black people in Southern states during the era of Jim Crow laws. “Are you going to charge people to vote? Are you going to charge people to go to the library and read The Statesman? Are you going to charge a sidewalk fee?”

Kefalas acknowledged the concern, but believes fears are being dramatized.

“Since this bill was introduced, some people have raised concerns about char-ges imposed by records custodians to produce records. While those are clearly important issues, they are beyond what this bill is intended to do,” he told the committee during opening remarks.

“How records are transmitted and giving people who live in great distances the option to receive those records without having to show up in person. That’s the issue that we’re trying to address with House Bill 1041,” continued Kefalas.

He pointed out that the measure came about after a broad stakeholder meeting in which the Attorney General’s Office, Colorado Common Cause, the Colorado Association of School Boards, the Colorado Broadcasters Association, Colorado Counties Inc., the Colorado Municipal League, the Colorado Press Association, the Colorado District Attorneys’ Council, the governor’s office and the Special District Association of Colorado all came to an agreement.

Mesa County Clerk and Recorder Sheila Reiner defended her office and fellow clerks, pointing out that records requests can place a burden on custodians that go above and beyond their normal duties.

“I have been witness to many requests that come into offices across the state, and the taxpayers end up paying for the wasted county resources as people work to satisfy the requests, and then they’re never acted upon,” she testified. “It is burdensome for some offices to do the work to produce the documents…

“The majority of the people that request open records from government offices are served quickly, inexpensively and reasonably,” she continued.

But opponents can’t understand why there is support for a measure that they believe could lead to high fees that limit transparency. They have targeted media support for the bill. At the hearing on Tuesday, both the CPA and a journalist backed the measure.

Jeremy Jojola, a journalist with KUSA-TV 9News, spoke in favor of the measure because it would help him to obtain documents related to his investigations without having to drive to far off places.

“I can certainly understand the frustration that some of the opposition has against this bill because I think it’s indicative of how some custodians will exploit loopholes within the law for their own benefit to either not do any work, or to delay… and the cost is obviously a concern here too…” testified Jojola, who acknowledged that it is “unorthodox” for a reporter to testify on legislative issues. “But… the way the bill is written now… I think it’s going to work.”

Greg Romberg, lobbyist for the Colorado Press Association, echoed similar comments.

“This bill does one thing: It says if you don’t want to show up at the office and you want to have the record sent to you, the custodian has to do it,” explained Romberg. “And then it has language… that if there are additional costs imposed on the custodian to do that… then they’re allowed to charge that transmission fee.”

Things turned emotional when Sen. Vicki Marble, R-Fort Collins — who opposed the bill — asked Romberg, “You are a professional and you work with all of us; you work with all of the municipalities. Are you employed by any municipalities as a lobbyist too?”

An unnamed opponent of HB 1041 had approached a member of the Colorado Press Association and suggested that Romberg was not doing his job for the CPA since he also represented local governments, according to Romberg’s own account. His clients include Arapahoe County and the City of Aurora, according to the secretary of state’s office.

Nearly brought to tears by the accusation, Romberg defended himself: “I’m not saying that you’re making that accusation, senator. But the fact that that’s been done through members of the Press Association this week is incredibly offensive…” Romberg choked up the words. “I’ve never had my credibility questioned by any elected official in this state…”

Amendments still don’t answer all fears

Acknowledging the contention surrounding the bill, Kefalas offered two amendments to attempt to alleviate concerns. Both amendments passed.

The first amendment seeks to clarify that custodians would have the discretion to waive the “lawfully allowable” fees, or the cost in relation to the transmission, but would also have discretion to make arrangements for payment up front.

The second amendment would require the custodian to either receive payment, or make arrangements for all costs associated with records transmission.

“I realize now that this bill is far from simple,” Kefalas said after proposing the amendments.

But despite his effort, opponents are still concerned. Harvey Branscomb, a member of the Colorado Voter Group, said with or without the amendments, the bill still increases the distance between the public and open records.

“Please stand up for the people of Colorado. We are not represented by most paid lobbyists. We are represented by elected officials who are themselves unfortunately afraid of CORA abuse,” Branscomb told the committee. “Please rewrite the language of HB 1041 to reflect the original intentions of CORA, or please postpone indefinitely this bill and let someone else write a better bill that will be consistent with the best intentions of CORA.”

Sen. David Balmer, R-Centennial, attempted to rewrite the bill by inserting language that would have added the word “nominal” to requirements for fees requested.

“If everybody’s in agreement that these are just nominal fees, why are we afraid to say that these are nominal fees?” he asked.

Democrats rejected Balmer’s amendment. Kefalas said he was willing to have a discussion about the fees, but that was not his intention with the measure.

“I try to do things in as thoughtful of a way as possible, in as deliberative of a way as possible…” he said. “I’m more than happy to have a conversation with Sen. Balmer and the folks involved in this issue.”

Peter@coloradostatesman.com