Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Month: December 2017

  • Capitol Visitor Services: The Public Face for Legislative Council Staff

    by Gwynne Middleton

    While state capitol regulars may be most familiar with the nonpartisan Legislative Council Staff (LCS) for its hardworking crew who staff legislative committees, constituents are more likely to interact with LCS’s constituent services staff who assist legislators in responding to constituent questions, concerns, and requests for information, and their public relations team, Visitor Services.

    Colorado State Capitol/Credit: Ashley Athey

    Housed on the ground floor of the capitol building, Visitor Services specializes in making the Colorado legislature approachable for the general public, welcoming visitors from as far away as Australia and as close as Cap Hill through their public tour programming. With approximately 70,000 people taking official tours each year, Visitor Services’ docents offer an insider’s look at the architecture and history of one of the most memorable public buildings in the state.

    Recently I had the opportunity to connect with the Visitor Services’ Assistant Manager, Erika Osterberg, and pick her brain about the many ways the capitol tour serves as a bridge between the legislature and the public they are committed to serving. Below you’ll find our conversation, edited for length and clarity.

    How does the capitol tour help LCS fulfill its mission?
    Our mission is to inspire and educate the public about our historic statehouse and the work of our General Assembly. While our work is a bit different than that of our colleagues in LCS, we share a deep pride and commitment to service as ambassadors to the capitol and the state of Colorado. Providing accurate, nonpartisan, and unbiased information in a professional manner is a responsibility we take very seriously and something we require each guide to honor.

    What does a typical tour look like, and what elements of the tour are unique to Colorado?
    Our public tours last about one hour and include a brief historical overview of our state; information about the architecture, construction, and materials that make up the capitol; capitol artwork; and the legislative process.  All public tours also offer an opportunity for visitors to make a trip up to the dome observation area to enjoy our incredible 360-degree view of the Front Range, downtown Denver, and the plains to the east.

    For groups with reservations, we offer this tour by default but can also build into their schedule a docent-led tour of Mr. Brown’s Attic Museum. Additionally, during the legislative session, we help coordinate a “legislative tour,” where groups can spend time observing work on the floor and learn in greater detail about the work of the General Assembly.  These tours are primarily designed for student groups, and Visitor Services leads these tours alongside staff from House and Senate Services.

    We have a very gifted team of guides comprised of volunteers and part-time work-study students from the University of Colorado at Denver and Metropolitan State University of Denver, as well as five full-time temporary college student “summer guides” who work from May-August and whose enthusiasm and love for this building is extraordinary.

    We see and hear many wonderful compliments about our knowledgeable and friendly staff who bring this building to life for so many visitors.  While in many ways the beauty of this building speaks for itself, touring with a guide gives one a deeper appreciation of the history and impact of the capitol and the work that happens here.

    Why do you think offering this tour to the public matters?
    In addition to educating the public about the rich history and heritage of Colorado, we recognize our unique opportunity in helping them better understand the legislative process and the importance of public participation in state government.

    Many visitors—both local and international— are surprised to learn that the public is welcome to observe work on the floor or that they may testify in committee, for example. We see it as an important responsibility to demystify work that some people find intimidating in its complexity.

    Ms. Osterberg’s insights into Visitor Services’ tour programming highlight the long-term value of welcoming people from all walks of life to the capitol. Opportunities to witness the House of Representatives or Senate in action from the galleries of their respective chambers and to stroll through the hallowed halls of this historic building may make visitors feel more invested in following the state legislative process because of their newly informed connection to this physical landmark that represents Colorado and its citizens.

    Free public tours start on the first floor of the capitol and occur Monday through Friday, on the hour every hour between 10 a.m. and 3 p.m. Groups with fewer than 10 members may join these tours and should arrive at least 20 minutes early because the tours are popular and often reach the 30-person limit before the tour begins. If visiting with more than 10 people, be sure to make a reservation via Visitor Services’ online booking form. These reservations can be made up to one calendar year in advance.

    For those who are unable to participate in an official tour of the building, the Capitol Building Advisory Committee, in conjunction with LCS’s Visitor Services, is currently working through a proposal to develop an audio tour that visitors can complete at their own pace. For more information about this proposed audio tour option, contact Visitor Services.

     

  • A Holiday Message

     

    Happy Holidays from the OLLS!

  • Mother May I? No. You May Not.

    By Jery Payne

    Imagine you are a judge who is hearing a case. The case involves a 16-year-old applying for his first driver’s license. He fulfilled all the requirements to receive a driver’s license, but the clerk at the DMV counter refused to issue one. The clerk didn’t explain the refusal other than to point out that Colorado law says the following:

    42-2-104. Licenses issued – denied. (1) Except as otherwise provided in this article, the department may license the following persons in the manner prescribed in this article:

    (c) Any person sixteen years of age or older who has not reached his or her twenty-first birthday, as a minor driver.

    The statute that authorizes the issuance of licenses says that the clerk “may” issue licenses. “May” is understood to mean that the clerk is authorized, but not required, to issue the licenses. “Therefore,” the clerk explains, “I don’t have to issue the license. Bye, now.”

    It turns out that the applicant had been dating the clerk’s daughter, but they had recently broken up. You suspect the clerk is punishing the applicant.

    As the judge, what do you do? The clerk’s explanation is more or less a correct understanding of the statute. The word “may” gives authority but does not normally impose a duty. Yet the clerk’s decision is clearly an abuse of authority. Do you apply the statute as written? Or do you hold that the statute requires the clerk to issue the license? Do you interpret “may” to mean “shall”?

    Now, imagine you are the drafter writing this statute, and you only have the words “shall” and “may” in your drafter’s toolbox. The goal is to grant authority to the DMV to issue licenses, but you realize you might not want to use the word “shall” because one of the goals is to make sure the DMV also has the ability to deny licenses to unqualified applicants.

    Another approach may be to focus on the applicant: “A person shall submit the following.” At first this seems to make sense, but then you realize that the law now requires people to submit the appropriate paperwork even if they don’t want a driver’s license. So this doesn’t quite work.

    A third approach may be to focus on the applicant’s age: “An applicant shall be at least sixteen years of age.” At first, this also makes sense, but then you realize that you have just given people a duty to be a certain age. The applicant can’t control his or her age, so saying he or she has a duty to be at least sixteen years of age is a little weird. And this approach has caused quite a few problems. What you really want to say is that an applicant needs to be a certain age to be licensed. Therefore, these approaches that use “shall” don’t quite work.

    At the same time, the word “may” can lead to a case such as the one imagined with the power-hungry clerk denying licensure to a qualified applicant. The word “may” doesn’t quite capture the goal, which is both for the DMV to issue licensees to qualified applicants and to make sure that applicants are qualified before being issued a license.

    If neither “shall” nor “may” quite captures the intention, then you face a conundrum. Go back and read the statute. It is actually quite clever in how it communicates the intention with words that don’t quite work.

    This is where the word “must” helps. Add this word to your toolbox. First, start with the DMV’s duty to issue licenses: “The department shall issue driver’s licenses to qualified applicants.” Now it is clear that the department has a duty to treat everybody fairly. Then, add a requirement (but not a duty) that the applicant meet the desired standards: “To be qualified, the applicant must be at least sixteen years of age.” The word “must” communicates a requirement, which is what the statute is trying to get at.

    This is why the General Assembly added the word “must” to the drafter’s toolbox. “Must” doesn’t mean a person has a duty; it means something is necessary, and this, it seems to me, is exactly what the legislature meant when it enacted this statute.

    Duprey v. Anderson is an actual case where a statutory “may” put the court in another type of conundrum. The case dealt with the purging of voter rolls. The statute provided for voter rolls to be purged of the names of people who didn’t vote in the last election. It also said that the county clerk “may” mail notices to purged voters.

    Upon the purging of the names of registered electors who failed to vote in the preceding general election, the county clerk may mail postal cards to all such purged electors informing them that their names have been purged from the registration books of the county clerk for failure to vote at such general election.

    The court faced the choice of declaring the statute unconstitutional or interpreting the “may” to mean “shall.”

    Here’s why the constitution requires notice: Without notice, the person probably wouldn’t know that voting again means reregistering. The person could show up on election day and, because the person isn’t registered, be denied the ability to vote. The constitutional requirement of due process requires the government to give notice to a person when it acts in a way that may affect his or her rights. Otherwise, the person will not know to take steps necessary to avoid the loss of a right.

    Unfortunately, the statute in this case used “may.” The statute allowed the clerk to decide not to send the notice, so it didn’t actually require the person be notified. To avoid the constitutional issue, the court chose to interpret the word “may” to mean “shall.”

    Using the word “may” normally means that the affected person or entity is authorized to do something. It grants discretion. It shouldn’t be used for something that is necessary. Both the driver’s license and voter roll statutes used “may” for a requirement.

    When working on a bill, the word “may” sometimes makes the stakeholders happy, but it might also put a court or state agency in a quandary. The court or agency might end up, in essence, rewriting the statute to make it work, and this can lead to unanticipated results.

    So what’s the takeaway from these two examples? If the intent of a statute is to require a person or entity to do something, the statute should not use the word “may.” If the statute imposes a duty, it should use the word “shall”; if it imposes a requirement, it should use the word “must”; and if it simply authorizes an action, it should use the word “may.” The drafter has good reason for suggesting the bill use “must” or “shall” instead of “may.”

  • The FAQs of Responding to CORA Requests

    By Kate Meyer

    Odds are, if you spend any time in the Capitol as a legislator or staff member, you’ll be the recipient of a “Colorado Open Records Act” (CORA) request at some point. In fact, given the recent uptick in CORA requests—and no sign that this trend is abating anytime soon—you may even have multiple requests to deal with (if you haven’t already!).

    This article addresses issues and answers questions that frequently arise for legislators and legislative staff in responding to a CORA request. Specifically, we’ll talk about deadlines associated with requests, tips for finding records, and other considerations you may find helpful. [Note: In addition to CORA, this article refers to the policies of the Colorado General Assembly regarding public records requests. The policies are included in the “Legislative Policies Related to Public Records and E Mail”, dated November 2013 (“the Policies”) and are available through the “Open Records Requests & Policy” link at the bottom of the Colorado General Assembly website.]

    Deadlines

    I’ve received a CORA request; what do I do and when do I need to do it? The first thing a legislator or legislative staff person should do is contact the Office of Legislative Legal Services, and he or she should do so as soon as possible. As you will see below, time matters in responding to CORA requests. The OLLS staff will work with legislators and legislative staff to prepare a response. Legisource previously covered the nuts-and-bolts of being CORA’d. Please refer to that article, and the Policies, for a broad overview of the process … and keep in mind that CORA imposes strict deadlines to provide public records to requestors. Generally, upon receiving a CORA request, recipients have three business days to respond.

    This CORA request is dated more than three days ago, but I only just opened the email/got the letter/found out about it from OLLS; what is my deadline to respond? According to subsection II.C.5 of the Policies, the CORA clock starts ticking when the recipient actually receives the request or, in the case of a request to a legislator that is also sent to the Office of Legislative Legal Services (OLLS), the earlier of when the legislator actually receives the request or when the OLLS notifies the legislator of the request and confirms that the legislator is aware of it. So, how does this work in real life?

    Example 1: If a CORA request arrives on August 1st (i.e., during the interim) via United States mail to a legislator’s office at the Capitol, and the legislator doesn’t open it until he or she is in the office on September 1st, the period of time in which to respond commences on September 1st, and a response is due three business days later on September 4th.

    Example 2: If the same CORA request from Example #1 is also sent to the OLLS, the OLLS receives its copy on August 1st and promptly leaves a message for the legislator to whom it is addressed. The legislator and the OLLS actually discuss the request on August 4th, and that’s the day from which the response deadline is calculated. The response will be due three business days later on August 7th.

    Ack! I need some time to get to my records to determine whether I have any to produce. Despite the stringent deadlines that attach to any CORA request, there is some wiggle room (up to seven additional business days) for recipients when “extenuating circumstances” exist. Even so, the recipient must provide written notice to the requestor that he or she is invoking an extenuating-circumstances extension within the initial three-day response window.

    Ok, but what constitutes “extenuating circumstances”? Subsection II.D.3 of the Policies states that extenuating circumstances exist when a request is submitted during the legislative interim and the recipient legislator’s office is closed. CORA itself provides that extenuating circumstances apply when an agency can’t fulfill a broadly stated request encompassing a large volume of records because, in the case of the general assembly or its staff or service agencies, the general assembly is in session (section 24-72-203 (3)(b)(II)(B), C.R.S.).

    Of course, “extenuating circumstances” do not exist when the CORA request is merely inconvenient. Because someone may file a CORA request at any time and the turnaround period is so short, CORA requests can be incredibly inopportune. Although “[r]esponding to applications for inspection of public records need not take priority over the previously scheduled work activities of the custodian or the custodian’s designee,” (Policies, subsection II.D.2.a) CORA recipients must take their duties under the law seriously.

    Finding records

    How should I assess whether I have responsive records? First, read the language of the request carefully. Many requests are limited to certain dates, names, terms, topics, and types of records. A legislator responding to a CORA request should keep in mind the request’s parameters. Start by using the request itself to identify appropriate search terms. Often, certain records are specified or terms are provided. If not, reassess: Is the request sufficiently specific to enable the legislator to comply? If so, proceed, making reasonably diligent and good faith efforts to devise search terms to unearth any responsive records. If not, the requestor will need to be contacted to clarify his or her submission.

    So, do I just need to check through my emails? No, not necessarily. CORA and the Policies broadly define “public records” to include many types of records. Only if the request is explicitly limited to emails should the legislator confine his or her review to emails. If the CORA request seeks records in broad-based categories such as “all correspondence/records/documents” or “any communications,” the type of records covered by those broad categories is not limited to emails but could be any type of correspondence—written letters or memoranda, hand-written notes, etc.

    Reviewing and retrieving my records will take me a few hours because I potentially have quite a few records to produce. In that case, please STOP! If responding to a CORA request will require more than one hour, the requestor must pay a fee deposit based on the estimated time required to retrieve any potentially relevant records before the legislator proceeds with retrieving and reviewing the records. A legislator who anticipates that it will require more than one hour to respond to a request, should provide the OLLS an estimate of the number of records that may be responsive to the request. The OLLS will use this figure to calculate the estimated search-and-retrieval fee deposit the requestor must pay within 30 days. Only when this timely payment is received will the legislator proceed with actually assembling the requested records. If payment is not received within the 30-day period, the CORA request is deemed closed and no further action is required.

    The requestor must be notified of the requirement for payment of the search-and-retrieval fee deposit estimate within three business days after receipt of the request unless extenuating circumstances exist—see #3 in Deadlines, above.

    Because the fee deposit is based on an estimate, the actual number of records located and the corresponding time spent retrieving and reviewing those records in order to respond to the CORA request may fall below or exceed that preliminary estimate. If it falls below the estimate, the overage paid by the requestor is refunded to him or her. If it exceeds the estimate, the requestor must pay a supplemental fee to cover the amount of time the legislator estimates will be necessary to retrieve the remaining volume of records.

    Do I have to produce my personal records that contain a term or otherwise appear to fall within the scope of the CORA request? Not necessarily; it’s the nature of the record, and not the platform on which it is created or stored, that is determinative. The mere fact that a document is created during one’s tenure as a legislator does not render it a public record. CORA defines “public records” as writings “made, maintained, or kept by the state, any agency, … or political subdivision of the state … for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.” Further, the Colorado Supreme Court has observed that the definition of “public records” in CORA is intended to preserve a balance between private and public interests. Accordingly, the scope of CORA’s “public records” definition limits the type of documents covered by CORA to those that relate to the performance of public functions or the receipt and expenditure of public funds. The Supreme Court found that “CORA was not intended to cover information held by a government official in his private capacity.”

    On the other hand, a public record is a public record regardless of the medium. So if a legislator uses a personal email account to conduct public business (e.g., relating to the performance of official functions), the records pertaining to that public business are still “public records” and must be disclosed if CORA’d.

    Is my constituent correspondence subject to disclosure under CORA? Potentially, yes. CORA’s definition of “public records” explicitly exempts a constituent communication that clearly implies by its nature or content that the constituent expects that it is confidential or is communicated to request assistance or information relating to a personal or private matter that affects the constituent and that is not publicly known. So other constituent correspondence (e.g., an email urging that a legislator vote for or against a particular bill) would not appear to meet this exemption. If a legislator has constituent correspondence that falls within the definition of “public records,” the OLLS will assist in redacting the constituent’s personal information before the document is released.

    Any other lifelines I can use? In addition to the OLLS, legislators may want to use their own staff members (aides, interns) for assistance in responding to a CORA request. Aides and interns are often tech-savvy and are familiar with the types, locations, and amount of records in a legislator’s custody. And legislators may want to apprise their caucus’s leaders or staff about CORA requests so that a caucus can track and assist with responses if it so desires.

    Other Considerations

    The requestor didn’t specify a reason for the request/I suspect the request is ill-intentioned. CORA does not require a requestor to explain why a request is submitted or for what purpose or in what manner any documents produced in response will be used. A record is subject to inspection or not; the impetus for the request is irrelevant.

    The request I’ve received is very, very broad; doesn’t the request need to be limited in some way? There is no requirement that a request contain any parameters; in fact, requests are often couched in expansive terms. For example, requestors can state that they are seeking “all records” that include a certain term (e.g., “energy” or “House Bill xxxx” or “the Jane Doe Lobbying Firm”), and they do not otherwise narrow the scope of the request. This approach can be deliberate (if a requestor isn’t certain what records may exist and thus wants to cast a wide net) or inadvertent (if a requestor doesn’t anticipate the large volume of records that a custodian may have in his or her possession that may contain the sought-after term). So long as the request is “sufficiently specific to enable the custodian to locate the information requested with reasonable effort” (Policies, subsection II.C.1.), that’s all that matters.

    Once I’ve been CORA’d, may I continue to discard records in accordance with my usual records retention process? No, at least not with respect to any records that may be included within the scope of the CORA request. Treat a CORA request like a litigation hold under which a person is obligated to preserve records for a certain amount of time in anticipation of future potential use. Once the CORA request has completely concluded, a legislator may proceed with document disposal pursuant to his or her written records retention and disposal policy. (For more information on developing such policies, please refer to Subsection IV of the Policies and consult with the OLLS.)

    Whew! Responding to that CORA request seemingly took forever; how can I reduce the amount of time the next one takes? A legislator can mitigate the time spent responding to requests by creating (and abiding by) a written records retention policy that establishes how long the legislator keeps various types of records, the frequency with which he or she disposes of records, etc. On one hand, the fewer records in existence, the lower the volume of records that a legislator may have to review and therefore potentially less time he or she will spend searching for, retrieving, and reviewing them. Alternatively, a legislator may feel it necessary, in order to adequately complete his or her legislative duties, to maintain records for significant lengths of time. The Policies contain a number of guidelines and recommendations regarding records categorization, retention, and deletion; a legislator may also consult with the OLLS. If a legislator decides to establish a written records retention policy that could affect the documents produced in response to a specific CORA request, the policy must be in place before the request was received.