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The 'work product' excuse for secrecy

The Rocky

Published February 23, 2008 at 10:55 p.m.

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There's a move afoot to turn the Colorado Open Records Act on its ear - at least the parts that deal with the "work product" lawmakers put together before they introduce bills at the legislature.

Should House Bill 1332, by Rep. Rosemary Marshall, D-Denver, become law in its current form, pretty much every bit of correspondence about bills in their formative stages - and possibly other documents as well - could be shielded from public view.

Let's hope that never happens. The bill would make it easier for lawmakers to do business in secret. And it would sabotage the intent of the current law, which states that "all public records shall be open for inspection by any person at reasonable times." People affected by proposed legislation might have fewer opportunities to suggest improvements . . . or rally opposition.

The open records law could use some clarity, as a January court decision in Denver signaled. But those fixes should ensure wider access to public information, not shut it down.

The court decision involved a case that pitted Marshall and Gov. Bill Ritter against Brad Jones, a conservative political activist and managing editor of the Web site FacetheState.com. Jones had tried to use the open records law last summer to force disclosure of a memo sent to Ritter's legal counsel Trey Rogers from Steven Ury, a California union lawyer, when the governor was discussing labor issues with lawmakers.

Ritter eventually issued an executive order to expand union ties to state workers rather than seek legislation.

Marshall claimed the memo contained work product, which is exempt from disclosure requirements. Jones countered that because the memo was in the governor's possession, and was sent by an outside attorney rather than legislative staff, it should be a public record.

Makes sense to us. Astonishingly, however, Marshall prevailed. District Judge Michael Martinez said the memo is not a public document, in part, because "Marshall had a reasonable expectation of confidentiality when she gave the draft legislation to Ury, who proceeded to give portions of it to the governor's office."

Such secrecy may be what public officials expect. It's alien to the spirit of the open records law, however.

HB 1332 would embrace the reasoning in the court decision and expand it. Lawmakers could arguably conceal all sorts of correspondence with outside parties by including references to potential legislation and then calling the entire exchange work product.

Lawmakers deserve some confidentiality when considering legislation. Drafts of bills involving legislative staff certainly qualify as in-house work product. But if lawmakers go outside for advice on the wording of legislation, such correspondence should carry no expectation of privacy. If one member of the public is free to see a legislative document, then everyone else should have the same privilege, too.

What's so shocking about Martinez's ruling is that the contacts did not involve lawmakers but were between a private attorney and the governor's staff. The case shouldn't have been a close call.

State lawmakers deal with matters that affect the life, liberty and property of all Coloradans. When they release a document to someone outside the Capitol, it's only fair that the rest of us have the opportunity to see it, too.

Comments

  • February 24, 2008

    6:34 a.m.

    Suggest removal

    vudumom writes:

    Once again we see another Bill coming out of the Colorado Legislature that does nothing to further the standard of living for Colordoans.They have done nothing I have read about to make Colorado a better place to live,work and raise your family.
    People complain about Washington.I think they need to start looking at their local and state governments and stop Colorado from becoming a mini-Washington,where nothing gets done except spending your tax money,raising your taxes,hiding what they are doing and not doing anything to improve the quality of life living here in this beautiful state.I'm grateful I can see the beauty of the mountains everyday,because when I look at what our local and state governments are doing to Colorado and it's citizens,it's ugly.No wonder they want liquor stores to open on Sundays,more revenue for them and people don't see as clear when they have been drinking or are drunk.

  • February 24, 2008

    7:18 a.m.

    Suggest removal

    Mike_In_Hartsel writes:

    Legislators don't want records public because they don't want to be held accountable for their actions. Legislators quickly forget that they work for the public and begin dictating to the public. A limited government, unable to keep secrets, is more easily controlled by the people, not the other way around.

    While in the minority, the Dems complained about the "games" being played by the GOP. Now in control, the Dems are doing the same thing but worse. You get what you vote for. Hello higher taxes and less freedom.

  • February 24, 2008

    9:05 a.m.

    Suggest removal

    ghoax writes:

    Section 14. Open sessions. The sessions of each house, and of the committees of the whole, shall be open, unless when the business is such as ought to be kept secret. (from the Colorado State Constitution)

    This means the "minutes" or what is discussed by our elected officials needs to be available to us and we have the DUTY to oversee what our government is doing. Particularly with the number of incompetents currently elected, it is more important than ever. We also have the right and DUTY to petition our government and a DUTY to hold our elected officials accountable for doing the business of OUR state.

    The proposed bill allowing the state government to operate in secret is pure and simple communism and in defiance of the people who elected her. This fact that this democrat propose such a bill should be grounds to seek her removal from office immediately period. A government of the people, by the people and for the people...

    Court case, ruling, private documents, all bogus reasoning to justify this bill. Sorry, but if the work has anything to do with what our government is doing, it belongs to the public...you know the "we" in We the people?? Ms. Marshall, to suggest that our legislature be allowed to hide it's activities is nothing short of a communist point of view, and you should do the right thing for your district and step down.

  • February 25, 2008

    3:54 a.m.

    Suggest removal

    mrfxx writes:

    ghoax seems to be living in the Cold War era.

    By definition:
    Communism: A theoretical economic system characterized by the collective ownership of property and by the organization of labor for the common advantage of all members.

    Socialism: Economic system which is based on cooperation rather than competition and which utilizes centralized planning and distribution.

    Fascism: A totalitarian philosophy of government that glorifies the state and nation and assigns to the state control over every aspect of national life.

    Therefore, what the represetnative is proposing is fascism!