Press advocates are proposing state legislation that would make exceptions for journalists in the fee schedule of Colorado’s public records law.
Reporters in the state have long asserted that the costs of obtaining public records are often too high and hinder their ability to inform the public about government business.
“It’s just prohibitively expensive for many requests, for the public and for the press, and sometimes that becomes a way to just suppress information getting out,” Tim Regan-Porter, CEO of the Colorado Press Association, told Newsline.
Regan-Porter is taking part in discussions that could change that. He is working with state Sen. Chris Hansen, a Denver Democrat, on legislation that would include updates to open records law, including the provision to give journalists a break on fees.
Access to state and local government public records in Colorado is governed by the Colorado Open Records Act, known as CORA. The act sets the maximum fee for research and retrieval of records, which is pegged to inflation on an every-five-years adjustment basis. The maximum is currently $33.58 per hour, for all members of the public, including journalists, with the first hour free. Records custodians often charge the maximum fee, and there is no limit to the number of hours for which they can charge. Colorado reporters regularly cite public records cost quotes of many thousands — even hundreds of thousands — of dollars.
Inflation threatens to send the fee soaring even higher when the next adjustment comes in 2024. An estimate calculated by Natalie Mullis, a state economist, for the nonprofit Colorado Freedom of Information Coalition suggested the maximum rate could get a boost to at least $38 per hour next year.
City offices are where public documents are frequently sought. Kevin Bommer, executive director of the Colorado Municipal League, which advocates for the interests of Colorado municipalities, expressed no fundamental objection to a journalist exception in CORA. The main interest of league members is providing access to public records “in a way that’s meaningful and doesn’t create an undue burden on taxpayers,” he said.
“It usually comes down, at least for our members and our advocacy, to ensuring that the letter and the spirit of CORA is met but that it also is done in a way that respects taxpayers and doesn’t allow the person who has a gripe against government, the non-journalist type … to just file CORA request after CORA request and bleed the coffers,” Bommer said
Election skeptics in recent years have sometimes adopted a practice of wholesale records requests. County elections offices in Colorado experienced such an influx of records requests in August after MyPillow CEO and Trump-aligned election denier Mike Lindell instructed followers to submit them that Matt Crane, executive director of the Colorado County Clerks Association, characterized it as a “denial of service” attack.
Newsline inquired with Hansen’s office about the bill but did not receive a response by the time of publication.
There’s the thorny question of how to define “journalist.” Regan-Porter noted there are already precedents for such a definition in state court rules and Colorado law. The state’s reporter shield law, for example, defines a “newsperson” as a member of the mass media “engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media.”
He cautioned that the bill is still in flux, and differentiating journalists from non-journalists is “something we’re uncomfortable doing,” but the difficulties that public records costs pose for reporters trying to get information to the public necessitated the proposal, he said.
“I don’t think there’s a lot of understanding in government or in the public on the economic realities facing the press, or of the public’s need for CORA, and the impact of the fees and how it can actually stifle information getting out,” Regan-Porter said.
Journalists get special mention in a couple of passages in CORA. One provision concerning a public record that “is a result of computer output” says a fee may be reduced or waived if the record is to be used for certain purposes such as journalism. But nowhere does CORA mandate a fee reduction for journalists, and the law generally makes no distinction between them and non-journalists.
Few states have public records laws that do. Illinois law says that a public document must be produced free or at a reduced cost if the requester states that their purpose is to disseminate the information in the public interest, and it specifies that “news media” is eligible for this privilege.
Jeffrey A. Roberts, executive director of Colorado Freedom of Information Coalition, said he would prefer for fees to be reduced for anyone requesting public records in the public interest. But there’s little legislative viability for such a proposal, particularly as election activists have occasionally turned to what some government advocates say is “weaponization” of public records law.
Fee exceptions for journalists are posed as a compromise.
“The reasoning is that news organizations, journalists, provide information to the public,” Roberts said. “They for certain need access to information about government in order to inform the public. So, because they play that special role, you can make an argument that maybe they should have a discount.”
