An exception to Colorado’s public records law has largely shielded investigations into allegations of sexual misconduct against public officials from scrutiny. That needs to change.
Last August, the state of New York released an independent report into the investigation into whether former New York Governor Andrew Cuomo had allegedly sexually harassed state employees. Everything was made public: 165 pages and not a single wording.
A month later, here in Colorado, Denver Public Schools officials released the results of an independent investigation into alleged sexual misconduct by DPS Board Director Tay Anderson. Instead of making the entire report public, however, they redacted much of the investigation’s findings (at least 17 of the 96 pages were redacted), and a district court in Denver ruled earlier this year that those redactions were legal. .
If you’re wondering why New Yorkers benefit from transparency while Coloradans don’t, the answer lies in an exemption to our state’s public records law that was intended to prevent the release of records of sexual harassment complaints and investigations. “maintained pursuant to any general assembly sexual harassment policy.” But that exemption has evolved since it was enacted in 1994, becoming incredibly broad to now prohibit the release of “any record” of sexual harassment complaints and investigations, including members of the public and public officials.
It is an exemption that goes against the spirit of the Colorado Open Records Act, or CORA, which clearly states that it is “the public policy of this state that all public records be open for inspection by any person at reasonable times.” . except as provided by law. This strong presumption in favor of disclosure of government records also requires courts to narrowly interpret any exceptions to CORA’s disclosure requirements.
But what works in theory doesn’t always work in practice.
In practice, this means that virtually no records of sexual harassment complaints and investigations can be released to the public despite a strong public interest in understanding the nature of potentially illegal or unethical conduct by government officials or private individuals, especially when It is a matter of public interest.
It was heightened public interest that led reporters from The Denver Post and The Denver North Star last October to seek out unredacted versions of the independent report commissioned and paid for by the DPS Board to investigate allegations of sexual misconduct against Anderson, and submit subsequent CORA applications to the school board
The Denver District Court ultimately ruled that the redacted sections of the report would not be released based on the broad language of the CORA statute, though it agreed that the investigative report, which ultimately found that the most serious allegations against Anderson were ” unfounded”. – was a public record and Anderson’s alleged misconduct was a matter of public record.
This meant that the largely redacted sections of the report remained that way, keeping the most salient and informative evidence of Anderson’s alleged conduct secret while serving as a Never Again Colorado board member and as a DPS employee. The newsrooms hide virtually the entire report that explored the “evidence tending to support the allegation” of sexual misconduct and, more generally, all parts of the “evidence tending not to support the allegation.”
It didn’t help that Colorado case law interpreting the statute was sparse. Even the court noted in its order that “a specific statutory exemption for such complaints and investigations is somewhat unusual, and other states resolve the question of whether such public records should be made public by balancing the privacy interest of those involved with the interest of the public.” in the content of the documents. The court’s analysis begs the question: Why doesn’t Colorado deal with the disclosure of sexual harassment complaints and investigations like other states do?
At a minimum, the statute should require that a public records officer balance the privacy of those involved with the public interest in knowing the information contained in the requested records. Applying the test would not prevent courts from requiring victims’ names and identities to be redacted to protect their confidentiality, and Colorado courts have been quite clear about the types of records that do not constitute public records when they are at stake. privacy interests: the responsibility of a public official’s personal diary, a public official’s personal cell phone billing records, and sexually explicit and romantically exchanged emails that are sent between two people, to name a few.
Such a balancing test would help ensure that communities can better understand and hold public officials accountable for their conduct. The courts have recognized that allegations of sexual harassment involve matters of public interest and that unethical conduct by government officials is a matter of public interest. There is also a strong public interest in evaluating the efficiency and impartiality of investigations into alleged sexual misconduct.
In theory, all public records should be open for public inspection. But in practice, little by little, the laws change and the promise of transparency fades. It’s time for Colorado lawmakers to make sure that promise doesn’t go away.
Rachael Johnson is a staff attorney with the Local Legal Initiative based in Colorado. She joins the Committee of Reporters from Hollingsworth LLP in Washington, DC, where she practiced complex business litigation.
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