The memo, please

Governor should drop effort to suppress memo on union issue

Wednesday, September 26, 2007

The Colorado Open Records Act was never designed to shield government officials from public scrutiny. But that's the way Gov. Bill Ritter seems to be interpreting it, at least in the instance of the "Ury memo," which is now the subject of a case in Denver District Court.

Disclosing the entire memo, which was sent from Service Employees International Union attorney Steven Ury to Ritter's legal counsel Trey Rogers, could embarrass the administration and Democratic lawmakers who are working with organized labor to craft legislation.

But if the courts let portions of the document remain secret, the ruling could set a troubling precedent, and make it much easier for state officials to conduct public business behind closed doors. The governor shouldn't wait for a legal ruling; he should immediately release its full contents.

The memo is one document from more than 1,000 pages of material covered by an open-records request filed last month by Republican consultant Brad Jones. The memo discusses legal and legislative strategies around drafting a law to give collective-bargaining privileges to state employees - a hot-button issue for GOP lawmakers, taxpayer advocates and local jurisdictions that fear they could be next.

But part of the memo remains cloaked in secrecy. A letter sent to Rogers last month from Rep. Rosemary Marshall, D-Denver, says it includes "all or part of a work product . . . regarding this issue" that legislative staff drafted for Marshall during this year's legislative session. Marshall claimed that the entire memo should not be disclosed because "work product" is exempted from the open-records law.

In early September, Ritter released eight pages of the memo and redacted the rest. Last week, Jones threatened to sue if the governor failed to release the whole thing. On Friday, Ritter asked the courts to decide if the entire memo should be made public.

Yes, under narrow circumstances, legislative "work product" is exempted from the open-records law. This exception allows lawmakers and staff to circulate proposed legislation, get comments on it and refine it before formally introducing it to the public. There's a separate exemption that covers work prepared by the office of Legislative Legal Services, the lawyers employed by the legislature.

This exemption is much like attorney/client privilege in civil and criminal legal matters, and both political parties take advantage of the ability to discuss legislative business in confidence before formally introducing bills.

But this memo - all of it - should be a public record. Ury is not an attorney for the legislature, or a member of the governor's staff. He works for a private party - the service employees' union.

Scott Gessler, who's representing Jones, argues that once Ury sent that memo to the governor's staff, Marshall could no longer claim that it was solely her "work product." It became a public document subject to the open-records act, he asserts, and should be fully disclosed.

We agree, and hope the courts will as well. Otherwise, it might be possible for government officials to shield volumes of correspondence with private interests from public view.

In his court filing, the governor claims to "not have a vested interest one way or the other whether . . . production of the entire document \[is] prohibited or required." If that's so, there's no reason to clog the local docket. In the interests of openness and transparency, the governor should release the memo in its entirety.