“Public” really means “Secret”

Jeffrey Roberts at the Colorado Freedom of Information Coalition brings us distressing evidence that key public officials really have a backwards understanding of open-records laws:

State lawmakers on Thursday defeated a bill that would have made the State Public Defender’s Office subject to the Colorado Open Records Act (CORA), preferring to let the Colorado Judicial Branch write its own rules for releasing administrative records for that agency and other agencies under its control.

With their 7-6 party-line vote, House Democrats decided the public defender is the person best qualified to judge what information about the public defender’s office should be available to the public.

“These are the real experts…,” said Rep. Pete Lee, D-Colorado Springs.

I mean, sure. Why have open-records laws at all?

In his testimony, state Public Defender Doug Wilson displayed yet again the gymnastics that public employees will attempt to turn CORA inside-out. Defending his office’s refusal to release spending records related to the defense of accused Aurora movie theater James Holmes,

Wilson gave the judiciary committee three reasons why he has rejected multiple requests for information on Holmes case expenditures: 1) the Gleason decision [exempting state courts from CORA rules], 2) a gag order that prohibits him from discussing the case and 3) ethical rules for lawyers that prohibit him from revealing client information.

Because of those ethical rules, Wilson said, “If there was no Gleason case, if there was no gag order, if we were under CORA today, I would still be denying requests as they relate to individual cases.”

Translated: Public officials must keep public records locked up unless they are compelled to release them.

This is a misconception, a photo-negative view of government accountability curiously common among government officials. In fact, CORA itself declares just the inverse: Public officials are compelled to make all documents available to the public unless they are forced to keep them locked up:

[A]ll public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise specifically provided by law.

Wilson’s reasoning runs directly upstream against CORA’s preference for access. (And his assertion that releasing his office’s budget records will violate attorney-client privilege beggars belief.)

Before he was done, Wilson reached for one last straw:

Wilson added that subjecting his office to CORA would open it up to lawsuits over the denial of records, potentially costing “a lot of money if I’m wrong” and must pay requesters’ attorney fees.

He’s right: he could be sued, and his budget would pay a hefty penalty if he’s wrong — a government agency that loses a CORA lawsuit can be ordered to pay the winner’s attorney fees. And that’s exactly why CORA exists: to give Coloradans standing to sue government agencies into compliance with what is, after all, a state law aimed directly at the behavior of state government offices. Wilson should feel the pressure of potential lawsuits; it’s the big stick that prods bureaucrats to default in favor of releasing records, exactly as CORA demands.

If nothing else had prompted any impatience with Wilson’s testimony, this last one should have brought peals of laughter. Instead, the panel sent a portion of government accountability to a 7-6 death.


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