It’s been on the books since the state legislature adopted the Colorado Open Records Act, or CORA, nearly a half-century ago: Anyone who “willfully and knowingly” violates the statute is guilty of a misdemeanor and faces up to 90 days in jail and a $100 fine.
“We’re definitely losing something,” said Luis Toro, executive director of Colorado Ethics Watch. “You sometimes hear allegations about records being destroyed. There was at least the threat of criminal prosecution. There was at least that disincentive. And now that disincentive is gone.”
Toro acknowledged, however, that the threat of prosecution was “empty” because no government official in Colorado has been charged with illegally withholding public records or any other violation of the open-records law. Lawyers who specialize in CORA matters can’t recall a single criminal case.
“Criminal laws that aren’t getting enforced don’t do people a lot of good,” Toro said.
District attorneys aren’t often asked to investigate alleged CORA violations. In the 18th Judicial District, the senior deputy DA is unaware of any such requests in the past five years.
Still, there are some recent examples of prosecutors looking into CORA-related allegations. In the past year, the Denver DA’s office twice considered charging public officials with open-records law violations but decided against doing so. The determining factor in both cases was the high bar for proving a violation.
In May, Denver DA Beth McCann announced that she would not bring misdemeanor charges against the city’s police chief and deputy chief for failing to disclose the existence of a letter from then-DA Mitch Morrissey criticizing the police department’s handling of a sexual assault investigation involving an officer.
“The law requires a knowing and willful violation,” McCann told Denver7, “… and it was my conclusion that I did not have adequate facts to be able to prove criminal intent in the case.” (McCann considered using the misdemeanor provision in CORA, rather than a similar misdemeanor in the Colorado Criminal Justice Records Act, because CORA specifically covers the correspondence of elected officials, DA’s spokesman Ken Lane said.)
Records custodians suggested deleting the misdemeanor from CORA during the months-long negotiations that led to the introduction of SB 17-040. They said the criminal penalty made them nervous about making mistakes when filling CORA requests and they would be more willing to accept new statutory requirements on the formatting of digital records if the penalty no longer existed.
SB 17-040 doesn’t affect the misdemeanor (also punishable by a $100 fine and/or 90 days in jail) for willfully and knowingly violating the Colorado Criminal Justice Records Act.
According to national education think-tanks, Colorado is taking seriously new requirements to include more information about how students are succeeding in school. But they complain that the plan is not very detailed, and lacks strong goals for student achievement, which critics say raises questions about how it plans to improve schools.
Colorado was one of the first states earlier this year to submit its plan to comply with updated federal education law — the Every Student Succeeds Act — to the U.S. Department of Education. The State Board of Education and state education department officials spent more than a year developing the plan with scores of teachers, advocates, parents and business leaders.
While state officials wait for an official response from Education Secretary Betsy DeVos — who must approve the plan to keep federal dollars flowing to the state’s schools — there’s no shortage of commentary from the education reform class. Three different groups have created reports assessing the plan.
The Collaborative for Student Success praised Colorado for its commitment to rigorous academic standards and data reporting. But it also raised red flags that are consistent with some early criticism that the federal education department has shared with other states — chiefly, that Colorado’s long-term academic goals are based on a confusing percentile system and make no sense.
The folks at the Fordham Institute, a center-right group, can’t say enough good things about Colorado’s plan. The Washington D.C.-based nonprofit came out early with an editorial praising the plan’s development. Now they are giving Colorado strong marks across the board.
A third group, Results for America, took a slightly different approach in critiquing the first batch of state plans. Working with the Council of Chief State School Officers, Results for America identified 13 strategies states could use in their plans as ways to improve student learning. Strategies include giving federal tax dollars only to schools that are using proven reform methods and creating a state system to support school turnaround efforts.
Colorado’s plan was recognized for requiring schools to create annual improvement plans that are based on proven techniques and consolidating multiple grant applications for school improvement work into one.
Here’s a Trumpillion dollar question: What the heck happened in the 2016 presidential election?
