The Colorado Open Records Act clearly outlines citizens’ right to access public files created and held by government agencies. However, the law’s language does not presently articulate that those records must be made available in their original digital form if requested, and while some agencies do provide that level of access, too many do not. Instead, public record custodians are too often in the habit of providing those who request access to files with cumbersome and costly paper versions – a practice that is in compliance with the Colorado Open Records Act, but certainly not demonstrative of its spirit. By amending the CORA to include electronic files, the state Legislature could emphasize the law’s intent while removing unnecessary barriers to public information.
Senate Bill 37 would have updated state law to require that government agencies provide “machine-readable” files to fulfill open records requests, where available and appropriate. Doing so would ease requestors’ access to files and their ability to search within them. Currently, agencies may provide these more readily searchable and readable files but are not compelled to do so. SB 37 would require agencies to provide the electronic files in their native format.
The measure, though, would not compromise CORA’s commitment to protecting confidential information – and its requirement that those seeking open records pay for the staff time needed to obtain the files and then omit any confidential or proprietary information that is not available for public inspection. That is appropriate, as is the notion that providing the original electronic files – minus data unfit for public eyes – rings true to the intent of CORA, and updates it for the pragmatics of the digital age.
The bill, however, was killed by Republicans in a party-line vote Senate State, Military and Veterans’ Affairs Committee on Wednesday. That is unfortunate, given the measure’s intended affirmation of the Open Records Act’s presumption of access to public files while simultaneously alleviating the burden on public employees to help the public find specific files – shifting that to the record-seeker. Instead, record-keepers would have been compelled to provide the files requested in the same format as that used by the agency or exported to a compatible program and made available to the public via e-mail, a shared uploading site or some other electronic means. This would eliminate the costly and inefficient paper copies often provided, and expedite the process for government agencies and record-keepers alike.
The bill maintains the $30 hourly rate that agencies can charge to find and prepare records for public inspection, and that is fair. Ensuring that the files do not contain private information takes time, and guardians of those records must be compensated for their efforts. But that ability to charge should not be used punitively. Nor should that of the cost of photocopying documents – a problem that SB 37 remedies.
The state Legislature erred in killing this non-controversial measure that would have saved time and money for both the public and government agencies. Lawmakers should assert a state commitment to transparency in government and citizen engagement in public affairs.
