Boulder and Sunshine Laws: Not-so-sunny days

Why isn't Boulder at the forefront of open government?

Joel Dyer | Boulder Weekly

If you aren’t a member of the news media, you may not be aware that it’s officially Sunshine Week, so here’s your chance to celebrate. It shouldn’t just be journalists who are taking time this week to appreciate our so-called sunshine laws — we all benefit greatly from their existence. Without these important laws, it’s not a stretch to say that our government — local, state and federal — would be far less democratic, far less effective and far more dangerous for all of us.

So in light of it being Sunshine Week (pun intended), Boulder Weekly is proud to share several of the best columns from around the country that were written this week to reflect on the importance of our nation’s sunshine laws.

As you will see on the following pages, there’s quite a diversity of such laws for every level of government in every state, and while some are better than others, at their core, all are trying to accomplish the same thing: to make government more open, transparent and accessible to the citizens it serves.

For instance, it’s the sunshine laws that require our city council meetings to be open to the public and well-publicized. Such laws are also the reason why three or more city council members can’t meet together privately, because that would theoretically constitute a secret meeting.

The Freedom of Information Act (FOIA) and, in our neck of the woods, the Colorado Open Records Act (CORA), are also examples of sunshine laws. Any newsroom worth its salt would literally be unable to perform its duty as a watchdog over government without these laws to grant us fair and inexpensive access to public records. That’s because such records are maintained and stored by the very government entities that often have a vested interest in keeping such information buried away from public view. Without sunshine laws none of us would be guaranteed the right to see these records, and many important documents would be finding their way into the shredder instead of the filing cabinet.

But journalists aren’t the only ones who should be celebrating this week. We have no special rights under the sunshine laws that every other citizen doesn’t have. Everyone is allowed to access their public records, hence the name. But sadly, this is not always the case, as government at every level these days is increasingly creating contrived legal arguments in an effort to keep their actions beyond the scrutiny of public view.

Chalk it up to human nature, but elected and appointed government officials and those who report to them aren’t always happy to have so much of their work lives made public, and I can’t blame them at all. It’s one of the reasons I’m a journalist and not a politician or city attorney or city manager or city anything. But there is a simple solution to their dilemma. If they want to work for the taxpayers, but don’t want those taxpayers knowing everything that they do at work, then they can and should quit. Get out of government. It’s as simple as that. Be completely transparent or be gone.

That’s what they can and should do, but instead, many simply attempt to create roadblocks to keep public information secret from the citizens to whom it belongs.

At the federal level, the words “national security” are now being applied to everything from banking and transportation to the illegal use of drones to covert operations in which our government can kill U.S. citizens abroad or read your email without a warrant. Even Congress is being told it can’t read the documents it wants to see. Our national security apparatus is out of control, but the critical information that would prove to what extent is being illegally kept from the public. It’s clear that we need even stronger sunshine laws for such important issues.

On the local level, one common ploy to thwart the sunshine laws is the abuse of executive session. There really are some things, such as personnel issues, that should be discussed by city councils and other governmental entities in executive session, away from the public and news media. But government officials all across the country are increasingly using executive session as a way to meet and make important decisions and backroom deals outside of public view. This was never the intent of executive sessions. Again, we need stronger laws to break through this roadblock and access the public information to which we are entitled.

Another questionable ploy to circumvent the sunshine laws, which is increasingly being used around the country and in Boulder, is the broadening of the definition of attorney-client privilege within city governments. For instance, if a council member wants to keep some aspect of public records away from public view, he or she need only discuss the issue with the city attorney, who then declares all public records related to the issue off limits due to attorney-client privilege.

This is, of course, a gross breach of the intent of our sunshine laws and particularly disturbing in a system of government like Boulder’s where, unfortunately, the city attorney is an appointed, not elected, employee dependent on city council member’s good graces to keep his or her job and get that next pay raise. It must be tempting for council members, knowing they can pull an attorney out of their pocket like an eraser to make any embarrassing or politically damaging public information disappear behind the wall of attorney-client privilege.

For that matter, since in theory the city attorney represents the entire city government, a city attorney could potentially, under this strained pretense, declare virtually any public records off limits due to attorney-client privilege. At that point the only way for the public to see its own records would be for someone to file a costly, time-consuming lawsuit against the city government that is supposed to be working for them. It’s no wonder why this “get out of jail free card,” as some misguided Boulder city council members jokingly refer to it, works so well. But it is no joke. It makes a mockery of the intent behind our sunshine laws.

This broadening of attorney-client privilege has become a controversial and destructive tactic increasingly deployed by less-than-open local governments all across the nation. I shouldn’t have to say that such a shameless scam to evade the sunshine laws has no place in a progressive community like Boulder, a community that once proudly touted itself as “the people’s republic,” but sadly, it needs to be said.

Perhaps the most disturbing and obvious attempt by Boulder officials to keep public records away from the public is the idea of making citizens and news organizations, at least some citizens and news organizations, pay excessive amounts of money for a look at what is already, according to the law, theirs to see.

It seems clear to me that both the City of Boulder and certain quarters within county government are using this pay-to-play public records ruse as a way to try to punish those it deems to be its critics and watchdogs, while often providing free access to records to those it views as its friends and cheerleaders. In some instances, it appears that this demand for excessive money is simply being used to actually prevent public access to records. Case in point, the Boulder County Clerk’s demand for more than $7,000 to see certain public records as reported in the story on page 16.

Enough. We are well aware that some on this current city council and in county government don’t particularly like us, and honestly, we don’t particularly care. That’s not our job. The most important part of our job is to serve our readers by providing the critical watchdog role over government that every government needs to function effectively for the benefit of the citizens it serves.

In order to do our job, we need to regularly go through large volumes of public records to make sure that the public’s interests are being properly served. It is the citizens of Boulder who are being shortchanged when public records are removed from media scrutiny by some contrived manner such as an overly broad interpretation of attorney-client privilege or excessive fees.

By doing many stories from public records over the past 20 years, BW has saved the city and county tens of thousands of dollars by reporting on things like improper disclosure during open space land transactions to government employees stealing taxpayer money. We have written such stories for a couple of decades now, and I should point out that we can’t remember ever being charged for anything more than the copies that were made when it came to public records, and most of the time those were provided for free as well because it was understood that the media is providing a public service when it disseminates information contained in public records.

But those days are apparently gone. I believe this city government is seriously sidestepping the intent of the sunshine laws and severely limiting our and the public’s access to public records. It seems to have little regard for conducting its business in an open, transparent way while being willingly, and I can’t stress that word enough, willingly, scrutinized by the media and other concerned citizens.

And while we can talk about the city attorney or the city manager or the city spokesperson or the IT guy who mostly gets stuck handling our CORA requests, they are ultimately not the issue here, because they are simply employees working directly or indirectly for the city council. It is the members of this city council alone who are responsible to the citizens of Boulder for whether or not public records are accessible in a fair manner.

And please, council members, when it comes time for you to defend the current sorry state of the public’s access to their records, please don’t give us the oft-repeated line that this is about recovering the pittance of money it takes to have someone look up records requests. We are talking about our government, and you owe it to every member of the Boulder community to set aside a tiny speck in the budget in order to run an open government.

If this council can find the money to plant flowers on Pearl Street; if this council can actually have serious discussions about whether it wants to spend $100,000 a year in perpetuity to take care of a buffalo herd being offered as a gift to the city by shameless self-promoting celebrity restaurateur Ted Turner; if this council can find an extra $1.5 million laying around to pay for cost overruns at the Valmont Butte cleanup site; then this council, if it wanted to do so, could find a way to afford a $25,000-a-year employee to pull public records for CORA requests.

And no, every single CORA request does not have to go into City Attorney Tom Carr’s office, where the request may get denied based on attorney-client privilege, seemingly depending on who submitted the request.

Most other cities, cities that don’t hold themselves up as beacons of social justice to the rest of the world or even refer to themselves as “people’s republics,” don’t do this kind of shoddy governance. So why does Boulder? It is becoming more disturbing every day to watch the city council of one of the nation’s great progressive communities operate in this fashion.

Here is an idea: As a celebration of our sunshine laws, someone on city council could propose a solution to the public records problem that the members of this council have created, either out of a twisted sense of entitlement or by apathy. Even if the proposal doesn’t ultimately become law, it would give the public a chance to have a voice on the issue, and it would give each council member a chance to go on the record about why they do or don’t support open, transparent government and easy and free access to public records, the same kind of access we have had until recently.

I, for one, would like to hear each council member explain in public why they can find millions of dollars for the projects they like, but not one red cent to make public records available free of charge to the public, all of the public, not just certain people and organizations. And if we hurry, we can get all of this done before November, which would be very helpful to voters.

Happy Sunshine Week. Respond: