A Colorado Springs reporter tried to obtain records of emails to and from that city’s mayor but was told those emails had been deleted after just 90 days.
And last year, state Sen. John Cooke requested a trove of emails from a top staffer at the state Public Health and Environment department, but initially the request was denied and he was told that the official’s emails had been deleted when he left his post.
With more records being held electronically, and, evidently, deleted quickly in many cases, public officials can much more easily skirt accountability, according to lawyer Jill Beathard’s review of state open records law for the Colorado Freedom of Information Coalition. The above situations occurred over the past five years, and communications options are continuing to evolve — including the development of apps that can make messages disappear automatically.
“You talk about a lack of transparency and trust among the public,” Cooke told the coalition. “Government can just wipe out all of their documents and you don’t know?”
Loopholes in the Colorado Open Records Act (CORA) offer government officials broad discretion over when to keep or delete the recorded history of public business in the state — documents and correspondence included — the new report finds.
“If the record doesn’t exist anymore, that’s the end of the line. They don’t have it, and that’s it. That kind of thwarts the purpose of CORA,” Beathard said.
The retention loopholes are increasingly urgent as technology changes the way people communicate, she said. While CORA has since 1996 acknowledged electronic records are in some cases public records, the law offers little guidance beyond that.
“Our record-keeping system needs to catch up to that,” Beathard said. “Because it really hasn’t. CORA and Colorado statutes are not clear about what records need to be kept, for how long — and the courts haven’t weighed in on it, either.”
Intensifying the problem with electronic record-keeping is the fact that many Colorado officials now use private-communication apps like Confide and Signal, which offer users a function that deletes messages once they’ve been read.
At least 15 current Colorado lawmakers are on Confide, and nearly a third of the legislature uses Signal, The Denver Post has learned. Many other public officials, including political staffers, use these apps, too.
Several who were interviewed for this story described this as less of a scandal or open secret than a reflection of the fact that the public, in general, is shifting toward messaging apps. Americans were estimated to spend twice as much time per day on these apps in 2019 as compared to 2015.
CORA does not address the use of such communications by elected officials and public employees.
“Technology is changing faster than the statutory framework,” acknowledged state Rep. Chris Hansen, a Denver Democrat who said he has “sparingly” used Confide. “It’s something we need to collectively discuss.”
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