Vail Daily column: Where the sun don’t shine
June 4, 2013
There are places where the sun don't shine. And so you have to take it upon yourself sometimes to grab a flashlight or a mirror and direct a ray or two. In government, where the murk can often be as deep as any antediluvian cave, a little purifying light is often just the thing.
Colorado's Sunshine Law is like that.
OK, first things first. What the Sunshine Law is not is an edict by the Legislature that, in order to promote tourism, the sun must blazon in our robin's egg blue skies for "x" number of days each year. Although that would be a laudable endeavor, what the Sunshine Law deals with, instead, is transparency. Transparency, in fact, in government.
The Colorado Sunshine Law for open meetings informs the methods by which public meetings are conducted.
The "legislative policy" forwarding the act states this: "It is declared to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret."
First passed in 1972 and later modified in 1996, the law provides that all meetings of two or more members of any state public body where any public business is discussed must be open to the public. Under the law, a gathering of a quorum or three or more individuals of a local body constitutes a meeting. Emailed messages discussing pending action constitutes a "meeting" and, accordingly, are subject to the law. A notable exception exists for private meetings where the discussion of public business is not the central topic.
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If the law is violated, then the alleged violation may be taken to state courts to consider and resolve. The courts are granted specific jurisdiction and authority to enforce the law's provisions and intent. If the court finds that a violation occurred, then it may award the party bringing action his attorney fees and costs.
What needs not be open to public scrutiny are: purely social gatherings; chance encounters; certain matters involving property; attorney conferences; negotiations with employee organizations; personnel matters; and student discipline.
The law treats state and local government differently in some areas. The statutes use the following definitions: "State Public Bod(ies)" include the General Assembly, governing boards of institutions of higher education including the CU Regents, state agencies, boards, commissions, etc. "Local Public Bod(ies)" include all political subdivisions of the state, such as counties, cities, home rule cities, school districts, special districts, metropolitan districts and RTD.
Public notice must be given prior to all meetings where the adoption of any proposed policy, position, resolution, rule, regulation or formal action may occur or at which a majority or quorum is expected to be in attendance. Notice must be "full and timely."
Minutes of all meetings must be taken and must be available to the public, however the minutes of any "executive session" must only state in general terms the substance of the matters discussed.
What is oftentimes considered "part two" of the Sunshine Law and which is, at the least, its kissin' cousin, is the Colorado Open Records Act.
Until 1969, when the Colorado Open Records Act was formalized, the ability of a citizen to gain access to public records was at the discretion of the custodian of the records.
Under the act, however, "public records" encompass all writings that are made, maintained, kept or held by governmental and quasi-government entities in the exercise of functions required or authorized by law or administrative rule (or involving the receipt or expenditure of public funds). A record that is in the custody of an agency subject to the Colorado Open Records Act may not itself be subject to the act if it was not made, maintained or kept for a governmental function or for an official reason.
There are several clear exemptions in the act. One is correspondence that is "work product" in nature is exempt. "Work product" may be defined as the writings, notes, memoranda, reports on conversations, research, "tactics" and confidential materials which a party has developed to assist its preparation for our understanding of a matter. Work product is essentially one's thoughts, reasoning and "homework."
Any person may request a public record and the party so requesting is not required to state a purpose for their request. Neither is the custodian of the records allowed to ask. Criminal justice record cannot be used for solicitation of business or for monetary gain, and there are other similar restrictions.
At the discretion of the custodian, certain records may be withheld. These include: records of investigations; test or examination questions; details of research projects being conducted by the state; real estate appraisals; and motor vehicle license photographs. A custodian of records must exempt: medical data; personnel files; letters of reference; trade secrets; library records; addresses of public school children; and sexual harassment complaints under current investigation.
The point of all this is to shine a little light on government and its doings and to check potential "backroom" deals. As Supreme Court Justice Louis Brandeis once famously observed, "Sunshine is the best of disinfectants."
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of "Community Focus." Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.