Colorado Ethics Watch has asked the Denver District Court to force State Senator Joshua Penry, R-Grand Junction, State Rep. Cory Gardner, R-Yuma, and State Rep. Frank McNulty, R-Highlands Ranch, to comply with an open-records request seeking documents and communications regarding two proposed oil and gas severance tax initiatives, including Amendment 52.

Penry, Gardner and McNulty, who sponsored and support Amendment 52, objected to the open records request through the Office of Legislative Legal Services (OLLS).  While OLLS provided Ethics Watch with a handful of documents, OLLS advised Ethics Watch that Penry, Gardner and McNulty are withholding additional relevant documents based on OLLS’ argument that when legislators discuss a ballot initiative they are not acting as legislators, and therefore, documents regarding their communications regarding a ballot initiative are not “public records” under the Colorado Open Records Act (CORA). 

“State lawmakers are using the initiative process as an alternative means of advancing their agenda, and therefore their e-mails to each other should be considered public records under the law, open to public review,” said Chantell Taylor, director of Colorado Ethics Watch.  “This lawsuit addresses a troubling resistance to transparency in government.  We hope the judge will recognize the dangerous precedent being set when lawmakers can claim a large portion of their work is unofficial business, and not open to public scrutiny.”

In 2005, the Colorado Supreme Court ruled that e-mails between a county clerk and recorder and a staff member with whom he was conducting an affair were not “public records” under CORA because the e-mails did not relate to public business and implicated their personal privacy rights.  This precedent is routinely invoked in response to CORA requests, for example, as an objection to requests to determine whether public officials are improperly conducting campaign business using public resources.  Ethics Watch is filing this case to obtain a judicial clarification of the statutory definition of “public records,” which has been narrowed beyond recognition by lawyers representing public officials based on an overly broad reading of the 2005 Supreme Court decision.

“This is an important case to better define the limits of the term public records,” continued Taylor.  “E-mails among legislators regarding ballot initiatives have a direct link to their official role in the legislature because Colorado legislators are authorized to, and often do, sponsor initiatives as an alternative means to accomplish legislative objectives.  In this case, the initial documents from OLLS indicate that the defendants used their official titles as legislators to promote the initiative.”