Colorado Freedom Of Information Project

2001

^BC-CO-FOI--Colorado FOI Project-Digest,<

^The Colorado FOI Project 2001=
^For Monday, Oct. 29, and thereafter=

Here is a digest for the Colorado Freedom of Information Project 2001.
It is a joint effort of The Associated Press and the Colorado Press Association to report on the implementation of House Bill 1359, the "executive sessions law" signed by Gov. Bill Owens on June 5.
Questions or comments may be directed to AP Chief of Bureau Peter Mattiace at (800) 332-6917, or pmattiace@ap.org; or to Colorado Press Association Executive Director Ed Otte at (303) 571-5117, or eotte@csn.net.
This project, as well as the Colorado FOI Project 2000, are also available at www.ap.org/colorado, The AP's general Web site for Colorado.

^IMPORTANT! THE PROJECT IS EMBARGOED!<

ALL STORIES ARE FOR USE ON MONDAY, OCT. 29, AND THEREAFTER.
Please respect the embargo.
All newspapers or broadcasters, whether AP or CPA members or not, are invited to use all or part of the project on or after the release date.

^YOUR LOCAL INITIATIVE IS ENCOURAGED.<

News organizations are encouraged to produce their own sidebars.
Further, this project may serve as a basis for editorials on the new law, open public meetings and open public records in Colorado.

^ABOUT ART.<

There is no art with the project. Newspapers and broadcasters are further encouraged to provide their own art, including a logo.

^CREDIT.<

Please credit the news organizations that produced this project. Please see the sidebar slugged BC-CO-FOI--Explaining the Project for a complete list of participating news organizations.

^---=

^MAINBAR: Governing bodies are adjusting to the new law.<

DENVER _ Governing bodies across Colorado apparently are adjusting to a new law requiring them to make a record of closed-door meetings. Some are more reluctant than others.
"It wasn't something we believed was necessary," said Lauren Kingsbery, attorney for the Colorado Association of School Boards.
"But it's the law now, and we're just making sure people are in compliance."
The law, signed by Gov. Bill Owens on June 5, mandates the recording and storage of the minutes of secret "executive sessions" for 90 days.
It also requires governments to detail the reasons for entering executive session and to cite the law that gives them authority to do so.
Slug: BC-CO-FOI--Executive Sessions. 740 words.
By Jennifer Hamilton, The Associated Press.

^---=

^SIDEBAR: Law's effects too early to tell.<

DENVER _ It is probably too early to tell the effects of a new Colorado law that makes it harder for governments to have closed-door meetings and easier to find out what went on inside, state legislators say.
"I think this was a good bill," said Rep. Shawn Mitchell, R-Broomfield, its prime sponsor. But, he said, "I think it will have a more modest impact than the rhetoric on both sides suggested before it passed."
Slug: BC-CO-FOI--Executive Sessions-Legislators. 550 words.
By Fred Brown, The Denver Post.

^---=

^SIDEBAR: A survey of selected governmental bodies statewide.<

UNDATED _ To some officials, a new state law affecting closed executive sessions is a procedural adjustment taken in stride. To others, it is another learning experience about open government.
To still others, it's another reason to do the public's business in public.
Such is the case at the RE-1 Valley School Board in Sterling, where President Curtis Long and Superintendent Marty Foster say their goal is as few executive sessions as possible.
Slug: CO-FOI--Executive Sessions-State Survey. 790 words.
By Peter Mattiace, The Associated Press.

^---=

^SIDEBAR: A summary of the new law.<

UNDATED _ Summary of House Bill 1359, signed into law by Gov. Bill Owens on June 5, as provided by the Colorado Press Association:
_ Executive sessions must be recorded the same way the public body records minutes of open meetings.
_ The chairman or chairwoman must attest that the minutes reflect the executive session and must cite the statutory authority for the executive session.
Slug: BC-CO-FOI--Executive Sessions-Summary of Law. 280 words.
By The Associated Press.

^---=

^SIDEBAR: Explaining the project.<

UNDATED _ Colorado's daily and weekly newspapers set out to learn if county and municipal governments are complying with a new state law concerning executive sessions held by public bodies.
In a similar project published last November, Colorado's newspapers found that about one-third of local governments failed to comply with the state's open public meetings laws.
Slug: BC-CO-FOI--Executive Sessions-The Project. 210 words.
By The Associated Press.

^---=

Again, the project is embargoed for Monday, Oct. 29.

^---=

The AP, Denver.


^BC-CO-FOI--Executive Sessions-The Project, Adv. 29,220<
^$adv29<
^For release Monday, Oct. 29, and thereafter.<
^With CO-FOI--Executive Sessions<
^Eds: If your news organization is not listed below, you can add its name on the basis that publishing or broadcasting any or all of the project is also participating in the project. The organizations are listed alphabetically by city.<
^COLORADO FOI PROJECT: How the project was conducted<
^By The Associated Press=
Colorado's daily and weekly newspapers set out to learn if county and municipal governments were complying with a new state law concerning executive sessions held by public bodies.
The newspapers canvassed selected county commissions, municipal councils, school boards and even fire protection district boards for adjustments for the new "executive sessions law" signed by Gov. Bill Owens on June 5.
In a similar project published last November, Colorado's newspapers found that about one-third of local governments failed to comply with the state's open public meetings laws.
Participating news organizations in the 2001 project are:
_The Daily Camera, Boulder.
_The Associated Press, Denver.
_Colorado Press Association, Denver.
_The Denver Post.
_Rocky Mountain News, Denver.
_The Durango Herald.
_The Greeley Tribune.
_The Daily Reporter-Herald, Loveland.
_The Journal-Advocate, Sterling.


^BC-CO-FOI--Executive Sessions, Adv.29,740<
^adv29<
^For release Monday, Oct. 29, and thereafter<
^With CO-FOI--Executive Sessions-Legislators, -State Survey, -Summary of Law, -The Project.<
^COLORADO FOI PROJECT: Closed-door meetings to be on record for 90 days<
^By JENNIFER HAMILTON=
^Associated Press Writer=
DENVER (AP) _ Governing bodies across Colorado apparently are adjusting to a new law requiring them to make a record of closed-door meetings. Some are more reluctant than others.
"It wasn't something we believed was necessary," said Lauren Kingsbery, attorney for the Colorado Association of School Boards.
"But it's the law now, and we're just making sure people are in compliance."
The law, signed by Gov. Bill Owens on June 5, mandates the recording and storage of the minutes of secret "executive sessions" for 90 days.
It also requires governments to detail the reasons for entering executive session and to cite the law that gives them authority to do so.
After the law was signed, associations for Colorado's cities, counties and school boards went to work to educate their members.
Kingsbery said she had conducted training seminars with school board secretaries, distributed articles about the changes and published sample school board policies with the updated executive session law.
"We did what we could to inform them of the new requirements," Kingsbery said. "We're telling people, 'As long as you stay on topic, you shouldn't have a problem.'"
Should someone suspect a governing body has strayed from the stated topic of the executive session, they can request that a judge review the tapes or written record.
The judge can decide whether the government body abused its executive-session privilege and whether to allow the public to review the record.
With the new measure, the public can turn the spotlight on officials they believe have entered gone to executive session without sufficient grounds or have not given enough detail on the session's topic.
That concerns attorney Geoffrey Wilson of the Colorado Municipal League.
"If we say we're going into executive session to discuss acquisition of the Mockingbird property, suddenly the Mockingbird property triples in price," he said. "That's precisely contrary to the reason the executive session was called in the first place."
The University of Colorado Board of Regents doesn't favor the changes.
"In terms of personnel and property matters we would just rather it be off the record, and now we're not," CU regents spokesman Bob Nero said.
Despite their reservations, city councils, county commissioners and other governing boards have taken steps to comply with the new measure.
At a summer retreat, the Colorado Municipal League held workshops on how to implement the law for its members, which are cities and towns. Some municipalities had not been keeping records even of open meetings and were forced to consider buying new equipment.
Wilson said city leaders wanted to know where the tapes of executive sessions should be kept and who should be their custodian.
"Mostly technical questions," he said. "There hasn't been a lot of whaling and gnashing teeth."
Still, Wilson said, it's unclear whether the bill will be useful.
"If these new procedures end up frustrating the use of executive sessions, it will have been a failure," he said.
Commissioners in Colorado's 63 counties initially opposed the measure, claiming it was unnecessary because very few problems with executive sessions had ever been reported, said Chip Taylor of Colorado Counties Inc., a county lobbying organization.
However, the legislative process did help remind officials how the executive session should be used when developing positions for negotiations and discussing personnel matters.
Taylor said it's too early to survey the effects of the change.
Ed Otte, executive director of the Colorado Press Association, which represents the state's newspapers and lobbied for the law, said his organization had heard several complaints about the private meetings.
"We heard complaints that leaders gave very vague reasons for going into executive sessions," he said. "It made them suspicious. Were they abusing that method of having privileged conversations?"
Other concerns were the frequency of closed-door meetings.
^___=
On the Net:
Colorado Municipal League: www.cml.org
Colorado Counties Inc.: www.ccionline.org
Colorado Association of School Boards: www.casb.org
Colorado Press Association: www.cpa.org

^BC-CO-FOI--Executive Sessions-Legislators,Adv. 29,550<
^$adv29<
^For release Monday, Oct. 29, and thereafter.<
^With BC-CO-FOI--Executive Sessions<
^COLORADO FOI PROJECT: Legislators say law's effects too early to tell<
^By FRED BROWN=
^The Denver Post=
DENVER (AP) _ It is probably too early to tell the effects of a new Colorado law that makes it harder for governments to have closed-door meetings and easier to find out what went on inside, state legislators say.
"I think this was a good bill," said Rep. Shawn Mitchell, R-Broomfield.
But, he said, "I think it will have a more modest impact than the rhetoric on both sides suggested before it passed."
Mitchell introduced House Bill 1359 last winter following a survey of open-government compliance by the state's newspapers. The law took effect July 1, and its impact so far appears to be more educational than punitive.
"Since this law came into effect I don't think I've run across any complaint about open records at the local level," said Ken Lane, spokesman for the state attorney general's office. "I think I've actually seen a decrease in complaints."
Mitchell said that is because most violations of open-meetings and open-records laws happen because local officials are unaware of the legal requirements.
"It wasn't a pervasive problem. Usually, it was ignorance," Mitchell said.
"I think the attention surrounding this bill, and the city and county organizations getting the word out to their members, will help with that. It will give citizens and reporters the tools they need to keep it honest," Mitchell said.
The bipartisan measure, carried in the Senate by President Stan Matsunaka, D-Loveland, says government policy-making groups that want to meet in executive session have to state clearly why they're shutting out the public, and the meeting must be recorded the same way an open meeting is recorded.
Anyone wishing to challenge the legality of the executive session could ask a judge to listen to the tape in chambers to determine whether the meeting was legally closed.
If the judge determines the topic wasn't one of the exceptions allowed under the state open meetings law -- harassment allegations by a student, for example, or strategy sessions with a lawyer -- then the record could be made public. That's the only penalty.
The bill sailed through the Legislature. Only 11 of the 100 members voted against it, all of them in the House of Representatives.
Rep. Al White, R-Winter Park, was one of the opponents, arguing that the restrictions would have the ""unintended consequence" of discouraging citizens from serving on public boards and commissions.
White, who served on special district boards before he was elected to the House in 2000, said he was concerned that "small-town, small-time local government entities can, with the best of intentions, bring up something in executive session that can get them in trouble."
"All we need is a couple of cases of that, of a good ol' boy being punished or embarrassed, and we could have a hard time finding people in rural areas to serve on these boards," White said.
But White conceded he hasn't seen any evidence of difficulties.
"I have not had anybody come to me and say I have a problem with this, or I'm not going to run for public office. So I guess so far my fears are ungrounded," he said.
"I think it'll take a while for it to come to a reality, if it ever does," White said.

^BC-CO-FOI--Executive Sessions-State Survey, Adv. 29,790<
^$adv29<
^For release Monday, Oct. 29, and thereafter.<
^With BC-CO-FOI--Executive Sessions<
^COLORADO FOI PROJECT: New law means a little more openness.<
^By PETER MATTIACE=
^Associated Press Writer=
To some officials, a new state law affecting closed sessions is a procedural adjustment taken in stride. To others, it is another lesson about open government.
To still others, it's another reason to do the public's business in public.
Such is the case at the RE-1 Valley School Board in Sterling, where President Curtis Long and Superintendent Marty Foster say their goal is as few executive sessions as possible.
"With the new stricter interpretations," Long said, "we don't see as much need for executive sessions."
The only time the board goes into executive session is to discuss personnel and individual students, Foster told The Journal-Advocate of Sterling.
A survey by Colorado's newspapers showed that governing bodies from Sterling to Durango generally are complying with a new law, signed by Gov. Bill Owens on June 5, that tightens rules on closed sessions, also known as "executive sessions."
For La Plata County commissioners in Durango, adjusting to the new law was "a matter of just hitting the record button," said county Manager Michael Scannell.
The county already tape-records each regular meeting.
In nearby Bayfield, the directors of School District 10-JT are paying more attention to details and giving the public a little more information, according to The Durango Herald.
"We have to be a little more specific in exactly what we call executive sessions for," said Superintendent Don Magill. "We always used to say why we are going into executive session. But now we have to say specifically under what state statute number."
At the Sterling City Council, officials also have updated their procedures before going private.
"We're a lot more detailed before we go into executive session," said City Attorney Doug Asmus.
The little town of Berthoud, between Longmont and Loveland, is still developing a written policy to the new law, according to The Daily Reporter-Herald of Loveland.
When Berthoud's Board of Trustees goes into executive session, officials give the public an estimate how long their private deliberations will take.
The new law will have little effect on Denver because of its home-rule status, which means it can ignore many of the state's mandates.
Denver wrote its own version of the new law into its charter in 1904, said Helen Raabe, deputy city attorney.
"We feel we've been way ahead of the state. We've had an open meetings and records law for 100 years," she told the Rocky Mountain News.
So the city's 50-plus boards and commission fall under that law, which has similar provisions to the state law on executive sessions.
The only other change that may affect Denver is the issue of attorney's fees.
Dan Slattery, an assistant city attorney who specializes in records requests, said the city must pay the attorneys' fees of anyone if he or she is denied records and then sues and wins the case. However, if the city wins the case, the citizen or reporter is not mandated to pay the fees.
"If the city was right in denying the records we don't get our attorneys' fees paid unless the requester was completely frivolous," Slattery said.
At St. Vrain Valley School District meetings, Superintendent Richard Weber takes "bullet point" notes at executive sessions, according to The Daily Camera of Boulder.
Weber doesn't want to tape record meetings because "occasionally executive sessions can become colorful" and he doesn't want to "obscure" issues.
In Boulder County, the University of Colorado Board of Regents, County Commission and the Longmont City Council are among the public bodies that have started to record executive sessions.
The same is true in Greeley, Evens and Windsor, according to The Greeley Tribune.
"We've kind of just settled right in," said Windsor Town Manager Rod Wensing.
"You just have to dot a few more i's and cross a few more t's," said Bruce Barker, attorney for the Weld County Commission in Greeley.
The change also is "pretty simple" to Broomfield officials, said Tonya Haas, deputy city attorney.
But Broomfield Councilmen Steve Olstad and Clark Griep said members turn off the tape recorder "when we actually get into the nitty-gritty."
"It's useless. It's window-dressing," Oldstad said of the law.
In contrast, Sheri Rochford, an ex-officio member of the Fort Lewis College Foundation Board of Directors in Durango, said the board has not met in executive session for more than two years. And, she said, the college's Alumni Association Board has never done so.


^BC-CO-FOI--Executive Sessions-Summary of Law, Adv. 29,280<
^$adv29
^For release Monday, Oct. 29, and thereafter.<
^With BC-CO-FOI--Executive Sessions<
^COLORADO FOI PROJECT: A summary of new law<
^By The Associated Press=
Summary of House Bill 1359, signed into law by Gov. Bill Owens on June 5, as provided by the Colorado Press Association:
_ Executive sessions must be recorded in the same method as the public body records minutes of open meetings.
_ The chairman or chairwoman must attest that the minutes accurately reflect the executive session and must cite the statutory authority for the executive session.
_ No record need be kept if the attorney for the public body determines that a portion of the executive session constitutes a privileged attorney-client communication. But minutes must contain a signed statement attesting to the privilege by the attorney and the chair of the session.
_ Anyone seeking access to the records of an executive session can apply to a court, which shall conduct an in camera review of the records of the executive session.
_ The court can order all or portions of the record of the executive session be opened to the public.
_ Records of executive sessions must be kept at least 90 days.
_ A public body going into executive session must identify the particular matter to be discussed.
_ Open records do not include the names of non-finalists for an executive position in government. When there are three or fewer applicants, all are considered finalists.
_ A public body must pay the attorney's fees for those who have been denied access to public records and who prevail after applying to a court to open the records.
_ A public body may win attorney's fees from those seeking access to public records if the request is determined "frivolous, vexatious or groundless."