by Chuck Brackney and Bart Miller
You may first encounter the Colorado Open Records Act, or CORA (§24-72-200.1, et seq.), as an unfamiliar e-mail in your inbox. The message may come from someone you’ve never met or even heard of, and it may contain a rather startling request for copies of “all e-mails sent or received by Representative Smith, as well as all telephone records, for the period January 1 to May 1, 2013.” Believe it or not, all of these records of communications are potentially subject to release in response to an open records request.
The definition of public records found in CORA is quite expansive. It includes all writings made, maintained, or kept by a member of the General Assembly for use in the exercise of functions required or authorized by law. There are some exceptions in CORA, including communications that are personal in nature, confidential messages from a constituent about a matter relating to that constituent, and work product between a legislator and legislative staff, including documents relating to the drafting of bills by attorneys from the OLLS. However, as a general rule, you should err on the side of considering all communications to be potentially releaseable, including records kept on a private, non-General Assembly computer.
Your first move, should you receive a CORA request, is to contact the OLLS. We will prepare a response to the requestor and assist you in determining what materials are releaseable and what materials are not.
CORA mandates a quick turnaround time for records requests. The law says that records must be made available for inspection within three business days after receipt of the request. This three-day period can be extended for an additional seven days in cases of extenuating circumstances, such as when a request arrives during the legislative session.
These short deadlines mean that you and your staff will have to quickly begin compiling the requested documents. For e-mails, this usually means printing a paper copy of each relevant message. OLLS attorneys then review these documents to see if any are not subject to CORA.
OLLS staff will contact the requestor to set up a time for the records inspection. The inspection takes place in our offices. After the inspection, we can return the materials to you or dispose of them at your direction.
Legislative leadership has adopted a document entitled “Legislative Policies Related to Public Records and E-Mail” that outlines how legislators and staff should respond to CORA requests. You can easily access this policy on the General Assembly’s web site. The policy also recommends that legislators organize their storage of e-mails and delete all e-mails within 30 days after sending or receipt unless there is a compelling case for keeping them.
Maybe the most important thing to remember when you receive a CORA request is that you are not alone when it comes to responding. The OLLS is prepared to assist you in sending a response, reviewing the documents, and arranging the inspection. Please let us help you with these requests!