This is Sunshine Week, the only week in the year devoted to celebrating the fact that we live in an open society, where We the People have the right to keep tabs on our public servants through access to the public’s records.
While this right formally arises under statutes (the federal Freedom of Information Act and state public records laws), many understand it to be a foundational prerequisite for a self-governing democracy. James Madison stated, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both..”
In truth, every week of the year should be Sunshine Week (just as every month should be Black History Month and every day Mother’s Day and Father’s Day). Still, these annual commemorations provide an opportunity to highlight issues confronting our society, both locally and nationally, that cry out for greater transparency and access to accurate information.
This year, three discrete issues deserve attention.
The first concerns challenges to public access posed by the COVID-19 pandemic. During these difficult times, it is vital not only that our public servants dutifully perform their roles in minimizing death and human suffering, but also that the public be able to monitor those operations.
The recent exposure of the alleged cover-up in the New York governor’s office regarding nursing home admissions is a stark example of the type of information necessary to hold those responsible accountable.
Unfortunately, government officials here in Colorado and throughout the nation have repeatedly denied access to infection information, either by citing the press of business or the Health Insurance Portability and Accessibility Act (HIPAA), or by making the records far too expensive to obtain
Providing accurate information and stemming the spread of misinformation in the midst of a crisis is a vital role for government, not one to be pushed to the back burner. HIPAA is a federal statute enacted to protect individually identifiable personal health care information that is transmitted electronically or digitally in the course of processing health treatment records.
HIPAA’s privacy rule does not even apply to many government agencies and does not prevent the disclosure of anonymized data. Indeed, HIPAA expressly authorizes disclosure of information to avoid the spread of contagious diseases. As the COVID-19 pandemic continues to play out in the weeks and months ahead, government officials should heed these truths and fulfill their mission of providing the public with accurate and timely information.
The second issue that requires attention during this Sunshine Week (and year) is the need for elected officials, other public servants, and especially government lawyers, to become better educated about our state’s open records and open meetings laws.
All too often, these laws are violated, and the public is denied its right of access to information, not as a result of nefarious efforts to keep secret the workings of government, but because of sheer ignorance. Two recent examples illustrate the point.
First, the Loveland City Council has conducted discussions of public business via text messages exchanged between more than a quorum of council members. Colorado’s Open Meetings Law could not be clearer in declaring that these discussions are “meetings” to which that law expressly and unambiguously applies. Meetings must be publicly noticed in advance and the public must be allowed to watch or listen in real time, meaning that, in short, these discussions should not take place via text message or email.
A second example occurred recently in Ouray County, on Colorado’s Western Slope. The county administrator and county attorney refused to disclose a disciplinary record concerning two department heads who had been sanctioned by the county administrator for putting in massive amounts of overtime while addressing the pandemic.
After the county attorney erroneously advised other officials that the disciplinary record constituted “personnel file” information that is subject to mandatory withholding, the county filed a “reverse-CORA” lawsuit against the local newspaper.
The county told the court the two public employees had not consented to the release of the disciplinary record. In fact, when the county finally did contact the two employees, they voluntarily supplied the record to the newspaper.
Ouray County ended up paying $7,500 in attorney’s fees to the newspaper while maintaining it had not done anything improper. It had: Every court in the state that has interpreted the “personnel files” exemption in the Colorado Open Records Act has limited its scope to personal demographic data like an employee’s home address, home phone number and personal financial information — information unrelated to the public employee’s discharge of his/her official duties.
So long as Ouray County officials continue to subscribe to a clearly erroneous understanding of that law, they will subject their taxpayers to additional unnecessary expenditures of public funds.
The last issue, though not arising directly under freedom of information laws, is the scourge of misinformation and disinformation (presents unique and unprecedented challenges to our democracy.
Obviously, accurate and timely disclosed information from the government can help in correcting misinformation. For example, public disclosures of the accurate and confirmed vote counts from crucial swing states, and the lack of any credible evidence of election tampering, or the alleged tens of thousands of “lost” ballots, should help debunk the big lie that the 2020 presidential election was stolen. And yet, to this day, polls show a startling number of our fellow citizens still firmly believe former President Donald Trump’s lie.
What can be done to counteract the spread and impact of deliberate and coordinated misinformation campaigns? There is no “silver bullet.” (State Sen. Kerry Donovan’s proposed government online truth commission is so flagrantly unconstitutional it cannot be among those answers).
But, clearly, many alternative approaches must be pursued if our self-governing democracy is to survive.
The Colorado Freedom of Information Coalition is hosting a free panel discussion on YouTube, addressing this topic, on Thursday, March 18, at 7 p.m. MT. The event is called “Truth Be Told: The Proliferation of Online Misinformation and Disinformation — And What We Can Do About It.” You can register to attend here.
As active participants in our democracy, each of us has not only the right but the duty to use our open records and open meetings laws all 52 weeks of the year.
Colorado prides itself on having more than 300 days of actual sunshine every year. Let us all commit ourselves to bringing that same level of sunshine/transparency to our state and local governments.
Steve Zansberg, a First Amendment attorney in Denver, is the president of the Colorado Freedom of Information Coalition.
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