Sun shines in at open meetings, records workshop
October 3, 2018
CRAIG — The sun was definitely shining in Craig Monday morning, as almost two dozen elected officials, volunteer board members, and residents gathered at Colorado Northwestern Community College for a workshop about the state's Open Records Act, Criminal Justice Records Act, and Open Meetings Act, collectively known as "Sunshine Laws."
Conceived, organized, and executed by Craig Press Assistant Editor Sasha Nelson, the workshop sought to offer local officials greater clarity on the sometimes confusing statutes that grant members of the public access to governmental meetings and documents.
Craig resident Corrie Ponikvar — chair of the Moffat County Republican Central Committee and former executive director of the Moffat County United Way —kicked off the workshop with a discussion about the three types of community boards — policy boards, working boards, and advisory boards.
Ponikvar, who has more than 30 years experience working with nonprofits, including five years on the board of the Memorial Hospital, first explained the difference between the three types of public bodies, then moved on to a discussion of the responsibilities each carries.
Policy boards, Ponikvar said, are essentially what the name implies: councils, commissions, and boards whose functions are to set policy.
Working boards, by contrast, refer to the boards that administer service groups or nonprofits, such as the Boys & Girls Club board.
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Finally, advisory boards refer to bodies that serve to research and advise other bodies, such as the Parks and Recreation Board.
But, regardless of their specific purposes, Ponikvar said, the responsibilities of each type of board are similar.
She listed 10 responsibilities inherent to serving on such a board, identifying the following three as being of greatest importance.
• Transparency: Ponikvar said transparency ensures the public's business is conducted in public and is among the most important tools of accountability. Each specific board, she said, is ultimately responsible for ensuring adherence to the legal standards and ethical norms of disclosure.
• Fiduciary responsibility: Ponikvar said strong finances work to strengthen the work of boards and build foundations for their success. This facet can be challenging for smaller boards, she said, as they typically do not have staff dedicated to fiduciary concerns. Even so, financial oversight and sound budgets are crucial to effective board function, she said.
• Civility: This, she said, ensures everyone — from board members to community members — has a voice.
"Civility creates real working boards," Ponikvar said. "It builds trust, spurs lively discussion, and helps promote consensus.
Following a robust question-and-answer session with Ponikvar, workshop attendees heard a presentation from Jeff Roberts, a former Denver Post reporter and editor who now serves as executive director of the Colorado Freedom of Information Coalition.
Roberts, who worked as a journalist for more than 20 years, took a deeper dive into the nuts and bolts of the state's Sunshine Laws, stressing from the beginning that these laws apply to all members of the public, not just the media.
"More than 40 percent of the questions I get come from members of the public," Roberts said.
He spent the bulk of his time Monday explaining the differences between the three laws and to whom — and under what circumstances — they apply.
Curiously, Roberts said, access to open meetings is not guaranteed in the First Amendment to the U.S. Constitution, rather by a set of statutes — many of them varying from state to state — that came after.
In Colorado, public access to open meetings is guaranteed by the Colorado Open Meetings Law.
"It is declared to be … the policy of this state that the formation of public policy is public business and may not be conducted in secret," Roberts said.
The purpose, he said is twofold: to afford the public access to meetings at which public business will be conducted and to allow members of the public the opportunity to participate in decisions that affect them.
He defined a public body as any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of a political subdivision of the state or a state agency, state authority, or governing board of a state institution of higher education, or General Assembly" or "a public or private entity to which a government or official had delegated a governmental decision-making function.”
He defined a meeting under the Colorado Open Meetings Law as any kind of gathering convened to discuss public business — in person, by telephone, or electronically — or any meeting at which a quorum is present or three or more members are present.
He stressed, however, that, to be defined as a "meeting," such a gathering must relate to the policy-making function of that body, a stipulation that provides board members an exemption to cover social gatherings.
According to Roberts, statutory requirements for public meetings include the following.
- They must be preceded by "full and timely notice to the public," with "specific agenda information where possible."
- They must be "open to the public at all times," unless closed for a proper executive session. If an executive session is called, the board must announce the statutory justification for the session and provide a clear understanding of the specific topic to be discussed in private.
- They must be conducted with minutes that are "taken and promptly recorded."
He added that executive sessions are for deliberation, not decision making, stressing that decisions must be made and votes must be taken in public. He also noted that an executive session must be approved by a two-thirds majority of the body in question.
Suspected violations of the Colorado Open Meetings Law include the following remedies.
- Disclosure of recordings made at an illegally closed meeting.
- Invalidation of any action taken at said illegal meeting.
- An injunction to conduct a new meeting to reconsider any illegal action.
- Mandatory award of attorneys fees to the person or persons bringing a successful complaint.
Turning to public records, which are covered under the Colorado Open Records Act, or CORA, and the Criminal Justice Records Act, which applies to police and court records, Roberts defined an open record as any paper, data, or other documentary material, regardless of format, that is "made, maintained, or kept by an entity that falls within the scope of the state or a state agency, a state institution, or a political subdivision of the state."
He drew an important distinction between CORA and the Criminal Justice Records Act, saying the latter was far more restrictive in terms of what must be released.
In general, he said, open records requests may be denied when disclosure would be "contrary to the public interest." Such records might include those associated with open police investigations, intelligence information, details of security arrangements, test questions or scoring keys, specific details of research projects by state institutions, and real estate appraisals, until the property passes to a governmental agency.
In addition, he said, there are certain circumstances in which open records requests must be denied.
These include the following.
- Public school student information.
- Information about users of public utilities or public facilities.
- Lists of library users or utility customers.
- Records of sexual harassment complaints or investigations.
- Records of vanity or disability license plates.
- Medical, mental health, sociological and scholastic achievement info.
- Personnel files (as narrowly defined by the courts).
- Letters of reference.
- Trade secrets, privileged info, or confidential commercial information.
- Applications of non-finalists for executive positions.
He offered a couple of caveats regarding what may and may not be released.
For example, autopsy reports are CORA records rather than criminal justice records, he said. For this reason, autopsy reports may only be denied if disclosure would hinder a police investigation and if that assertion is supported by a court order.
In terms of email and text communications, Roberts said it's the content, not the device — personal or professional — that matters.
Generally speaking, he said, if the content of an email or text message deals with public business, the communication must be disclosed.
As to records requests, Roberts said legal requests for documents must be fulfilled within three working days, except in cases of "extenuating circumstances," when delays of up to seven days may be permissible.
Roberts said a CORA request letter template is available to the public on the Colorado Freedom of Information Coalition website, but he urged members of the public and the media to begin their quests for access to public records with a conversation rather than a CORA request.
Contact Jim Patterson at 870-565-3593 or jpatterson@CraigDailyPress.com.