'Fishing expeditions' behind Fort Collins legislator's bill to modify open records law

The purpose of a bill proposing modifications to the Colorado Open Records Act is not to limit public access but simply to give government agencies additional time to respond to those using the law for “fishing expeditions,” sponsor Cathy Kipp said Wednesday.

Records custodians would be able to label those making excessive requests for public records as “vexatious requesters” and expand the time frame for responding to their requests to 30 days instead of the current three for most requests — with an allowance for up to seven days in “extenuating circumstances.”

Here's a look at the bill and how it would impact open records in Colorado:

How would 'vexatious requester' be defined?

The definition of “vexatious requester” is still being determined before the bill goes before the committee for a vote, Kipp said. There will also be a time limit on how long someone could be considered that by a specific public organization, and the definition will only apply to requests of that particular organization.

It is a designation, Kipp believes, that would only apply to a very small number of people making public records requests in Colorado.

“We’re putting some boundaries around it,” Kipp said. “I think public information should be public; I think it should be transparent. I think it should be available to people. But I do think that some of the ways people use agencies as their own private researchers makes it challenging.”

Would it impact members of the media?

Recognized news media, the bill specifies, cannot be labeled “vexatious requesters,” regardless of the number of open records requests they might make. The bill uses definitions of “mass medium” and “newsperson” that are in existing state statutes, Kipp said.

What about citizen watchdogs?

Critics of HB24-1296 argue that it reduces government transparency by preventing citizen watchdogs from receiving public records, including those they then might share with professional news media, in a timely manner. A handful of people have openly criticized Poudre School District’s support of the bill through the lobbying efforts of the Colorado Association of School Boards at recent school board meetings and in emails to the Coloradoan.

“This legislation proposes changes to CORA that are not only discriminatory but also pose a grave threat to the transparency of PSD operations,” Wellington resident Jeff Aufderheide said at a school board meeting Tuesday night.

Kipp, a Fort Collins Democrat representing District 52, argues otherwise, noting that even those identified as “vexatious requesters” must still receive the records they are requesting through CORA.

“We’re not denying them the information; they’re just going to have to wait a little bit longer,” she said.

What else would the bill do?

The proposed bill, introduced last week in the Colorado General Assembly, also clarifies response times in other circumstances, including allowing for additional time when the custodian is not scheduled to work within the legally required response times and a list of valid extenuating circumstances that will trigger the longer response time of seven business days instead of three.

Multiple amendments are being made, Kipp said, to clarify the language and remove some provisions that stakeholders she has been meeting with say are unnecessary. That includes the removal of a proposed two-day “evaluation period” during which records custodians would have been required to say whether any responsive records existed, estimated costs, if any, associated with making them available, whether they qualified for the additional time allowed under extenuating circumstances, and whether the request was being made for commercial purposes and/or by a vexatious requester.

A portion of the bill also allows a records custodian to exempt from public records the calendar of employees of government organizations other than the calendars of elected officials or employee in a leadership position. That exemption would not apply, the bill draft’s language reads, if the request is made by “a mass medium or newsperson.”

Who else is sponsoring the bill?

Co-sponsors of the bill are state Sen. Janice Marchman, a Loveland teacher and Democrat representing the 15th District, and state Rep. Matt Soper, a Republican representing District 54 in Delta and Mesa counties.

What still has to happen for the bill to become law?

The bill was assigned to the House committee on state, civic, military and veterans affairs, where it is scheduled to be discussed and voted on March 4. If passed there, it would move forward for a vote in the full House and then Senate before becoming law.

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Why is Cathy Kipp sponsoring the bill to modify CORA?

Kipp served on the PSD Board of Education from 2011-19 and said the number of open records requests received by the district during that time increased two- to three-fold. She’s particularly concerned about the cost some public entities are incurring to respond, particularly to broad requests made for “questionable reasons.”

“There’s a few individuals in the state who have caused more than their share of issues, and a lot of times they’re going after things that are, how should I say, not accurate information,” Kipp said. “They’re buying into conspiracy theories or urban legends or whatever they are, and they’re going and doing fishing expeditions.”

A hospital district board of directors that a friend of hers serves on, Kipp said, was receiving daily CORA requests from one individual and found it less expensive to hire in-house legal counsel for $300,000 a year rather than to contract out the legal services each time to ensure sensitive personal data was retracted from records before they were released.

What about fees for open records?

CORA allows public agencies to charge those requesting records for the time staff spends compiling them and redacting sensitive personal data and other elements as permitted under the statute. The Coloradoan, for instance, recently paid more than $140 to PSD for the estimated 5 1/2 hours of staff time required to review and redact information from a facilities assessment study that could compromise school security.

Limits on the fees that can be charged for records requested for CORA, Kipp said, don’t cover the full costs of making those records available with any necessary redactions within the required time frame. No public agencies that she’s aware of have additional funding available to absorb those costs, and the state can’t provide that money to one entity without taking it away from another that’s also struggling to get by with the funding it receives.

Reporter Kelly Lyell covers education, breaking news, some sports and other topics of interest for the Coloradoan. Contact him at kellylyell@coloradoan.com, x.com/KellyLyell and  facebook.com/KellyLyell.news. 

This article originally appeared on Fort Collins Coloradoan: Why Fort Collins legislator wants to modify Colorado Open Records Act