Lawmakers Question Costs of Open Records Reform

February 27, 2013

Brophy said he’s learned of cases where citizens were assessed a “huge bill” for requests made through CORA

DENVER– The Senate passed a bill Tuesday to “reform” the Colorado Open Records Act to broaden government transparency, but the potential costs dismayed several Republican lawmakers who want clarity of its impact on citizens.

In a procedural move, five Republican senators demanded a factual fiscal note before the bill moved forward to its final vote – and ultimate passage. They voiced concerns that the bill would result in massive fee increases for public records – and be inconsistently applied by jurisdictions.

“This bill is not about fees. This bill is about transmission of public records,” protested Sen. John Kefalas (D-Fort Collins), who with Rep. Brittany Pettersen (D-Lakewood) sponsored House Bill 1041.

The bill, he said, would expand the transmittal of records to include email, fax as well as postal or special delivery service to make it more convenient for individuals to obtain public documents.

Currently, the Colorado Open Records Act (CORA) requires government entities and custodian of records to respond to requests within three days. The cost of paper copies has generally been capped at 25 cents per page.

Under HB 1041, the three-day period may not commence until after the individual requesting records has prepaid fees for research, copying and delivery, including electronic. Those costs are decided by the custodial of the records and may include excessive per-hour fees for research and guesstimates of time and delivery fees.

“What is the result when a person does a CORA request? How much are they going to be charged?” asked state Sen. David Balmer (R-Centennial). “It’s one of the critical issues in this bill.”

Balmer moved an amendment to insert “nominal fees” to clarify the costs would be minimal and for services beyond the scope of job responsibilities of taxpayer- paid government records custodians and staff.

The amendment was defeated Tuesday on the Senate floor – just as it had been in the Democrat-controlled Senate Local Government Committee last week.

“My problem with this bill is that I don’t believe it properly balances the interest of those involved with the CORA process,” said Sen. Greg Brophy (R-Wray), referring to records custodians and those who request public information.

Having served on the Legal Services Committee for several years, Brophy said that he is very well versed in regards to CORA – its benefits and its abuses.

Brophy said activists could easily overload a governmental agency with CORA requests – and disrupt the primary and daily functions of that entity. On the other hand, a citizen’s CORA request could be thwarted by a demand for excessive fees at the get go.

“If you have a government agency trying to cover up its tracks,” said Brophy, “it’s possible “they could suggest that’s going to cost a tremendous amount of money to undergo this research to provide these documents to the citizen who has asked for them.”

Brophy said he’s learned of cases where citizens were assessed a “huge bill” for requests made through CORA.

“I’ve even heard of a $10,000 payment requested up front before that agency would give people documentation,” said Brophy.

Brophy attempted to amend the bill with a sunset clause forJuly 1, 2017, which also set a deadline to obtain more fee information from Legal Services and hold a public hearing to evaluate the impact of HB 1041 on the public as well as governmental agencies.

Imploring senators to reject Brophy’s amendment – Kefalas said after the bill is passed and signed into law, he will gladly discuss the fees with interested individuals down the road.

As the bill traveled through the state House and Senate, Kefalas had communicated with a vocal opponent, Marilyn Marks of The Citizen Center inAspen.

Marks said that she applauds the bill’s intent to expand open records – but criticized the bill’s conflicting language and lack of clear guidelines on cost structuring for services. The bill had implied electronic transfer of records would be free – but then states the costs for transmission can be assessed as a fee.

The bill also allows a custodian of records to waive fees for services without parameters – and that Marks argued opens the door to inconsistent and selective treatment of citizens.

“We have seen recent ‘research fee’ charges of $1,900 to $7,500 for relatively small information requests,” said Marks in an email to members of the Senate Government Affairs Committee. Her sample of research rates ranged from $30 per hour inBoulderto $475 per hour inAspen.

The bill, warned Marks, “contains a costly Trojan Horse creating an incredibly complex bill which is almost impossible to analyze.”

“I believe I have done my best to address your valid concerns,” Kefalas responded to Marks. “Now I am respectfully asking you to do the same, and please refrain from such statements as ‘Trojan Horse’ that mostly serve to distort the reality of this bill.

“As for the ‘Trojan Horse,’ – it’s no longer a necessary analogy,” replied Marks. “The Greeks have now poured out of it and are fully visible.”

The bill passed the Senate, 22 to 13, with Republican Sens. Ellen Roberts of Durango and Steve King of Grand Junction joining the majority party.

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