Legal Corner: Should Coloradans have a "right to know" all governmental affairs?

When the Taxpayer Bill of Rights (“TABOR”) was passed in 1992, proponents claimed that its provisions were “tightly crafted.” But opponents warned against putting complex and detailed requirements in the state constitution, especially with “vague and confusing” provisions relating to matters of significant magnitude. TABOR’s broad, unclear language resulted in tremendous challenges for all levels of government services, including years of costly litigation and funding uncertainty. However, removing the structural barriers that cause those challenges is extremely difficult because TABOR is a constitutional provision.

This year, Colorado voters may be faced with another broad and ambiguous constitutional amendment regarding another significant matter: “the affairs of all levels of state and local government.” Several proposed ballot initiatives have proposed to constitutionalize the Colorado public’s “right to know” governmental affairs. Although two of those initiatives have already been withdrawn, Initiative No. 261, if approved for the ballot and passed by 55% of voters, would add a new section to the Colorado Constitution’s Bill of Rights, stating that the people have a “fundamental right to know the affairs of all levels of state and local government” at least with regard to all public records and meetings. This initiative was created by groups across the political spectrum – excluding any public entities – including the Colorado Press Association, Colorado Public Radio, the Independence Institute, Colorado Common Cause, and the Colorado Freedom of Information Coalition. So, what does it mean to have a “right to know”?

A constitutional “right” to know?

There is no federal constitutional right to know, as reaffirmed by the U.S. Supreme Court in 2013 in McBurney v. Young. McBurney upheld a Virginia law requiring users of state public records law to be residents of the state; non-Virginians did not have a right to state public records under the Virginia Freedom of Information Act (FOIA). The Court recognized that Virginia citizens paid fixed costs that supported record-keeping. Non-citizens did not pay into this system, which distinguished their interest in state records from state citizens. While non-citizens are not barred from state records entirely, they only have access to non-privileged litigation documents, judicial records, and records that pertain directly to them. Though states are permitted to maintain their own FOIA laws, the Constitution does not guarantee their existence.

At least eight state constitutions expressly mention the right to inspect government documents, attend government meetings, or both — California, Florida, Illinois, Louisiana, Missouri, Montana, New Hampshire, and North Dakota.  These states have held that the right to know is fundamental, which is granted a higher degree of protection from government interference. Further, such provisions guide courts’ analyses toward public disclosure when public records laws come into conflict with exemptions and privacy claims.

Most constitutional right to know provisions are concise, unlike the proposed Colorado measure. Louisiana’s is just one sentence, simply stating that “[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” Shorter provisions give state courts and legislatures more leeway in interpreting the provision when it gets challenged. Colorado’s proposed measure, however, has nine subsections. This provides courts and legislatures with less flexibility to interpret and implement the provisions, meaning it will be more limiting to the efficacy of government.

Florida has the most extensive provision of the states that have adopted them. Florida guarantees every person’s right to inspect public records and have notice of and be able to attend the open meetings of public bodies. Further, Florida makes those rights “self-executing,” meaning they do not need additional legislation to be enacted to give force to these rights. The Florida Constitution also requires a two-thirds vote of both legislative chambers to enact new exemptions to the public record and meetings law. Colorado’s proposed measure is closer in substance to the Florida right to know provision, which is extensive and limiting on government, than it is to the other provisions.

The proposed Colorado “right to know”

The proposed constitutional amendment would undercut over five decades of balance and compromise reflected in the Colorado Open Meetings Law (OML), Open Records Act (CORA), Criminal Justice Records Act, and numerous other statutes and judicial opinions that address the publication and confidentiality of court records. Municipalities and other local governments already must navigate complex requirements and narrow timelines and subsidize the state’s public policy of transparency through local dollars.

The proposal creates a “fundamental right to know the affairs of all levels of state and local government,” which is meant to “guarantee access to public proceedings and public records.” The amendment prohibits the denial, deprivation, or unreasonable burden on these rights and prohibits any law that would inhibit or restrict the rights.

Like the TABOR amendment, these broad statements reflect the sincere hopes and goals of drafters without considering the real-world impacts on the operation of government, the delivery of services, fundamental privacy interests of individual, and the cost of providing this ambiguous level of transparency. The amendment places its view of transparency above only the “demand of individual privacy or other highly compelling state interest.” Legislation can implement the amendment but must be within the measure’s confines or somehow reduce the “costs of obtaining access.”  The burden of withholding access must meet exceedingly high standards.

Even if voters approve the proposal, decades of judicial interpretation and statutory implementation of the proposal’s vague and ambiguous language will be sure to follow.  The right would be self-executing, requiring no statute to implement the right. In the meantime, governments will have to wonder how they can operate normally without risking the $1,000 per violation fine (possibly the fine set in the constitution) because they do not know:

• What constitutes a “deprivation” or places an “unreasonable burden” on a person’s right?
• Is the burden on access subjectively or objectively assessed?
• Are privacy interests or state interests addressed categorically or on a case-by-case basis?
• Which affairs are public affairs?
• Will there be any limits on what is a public record or public proceedings?
• What constitutes a “highly compelling state interest”?
• Will the government have to go to court to defend against every attempt to access information that is private or has been recognized by the courts as compelling?
• Will public employees have any expectations of privacy?
• Does the right extend to personal identifying information, voting records, immigration status, information regarding juveniles, court records, sensitive crime scene photographs and videos, and more?
• Are executive sessions permissible for any purpose, including to preserve the attorney-client privilege, to discuss sensitive security plans or protected investigations, or to protect a public body’s negotiating positions against private interests that would seek to benefit from taxpayer funds?
• Can the government require any fees to retrieve records, or must they subsidize the efforts out of their general funds?
• How do these rights affect the operations of government that do not operate through governing bodies, like the executive or judicial branches of state government or mayor-council municipalities?

The list of practical questions is confounding. Are the courts prepared to handle the volume of activity that the right would generate? Are the people ready to accept a decrease in services and government activity in exchange for this level of transparency? Are the people willing to accept that they can’t be assured that sensitive information won’t be private unless the government goes to court to show that the privacy interest “clearly exceeds” the right to know “by clear and convincing evidence.”

Why now? Why Colorado?

The impetus for the new initiatives may stem largely from recent efforts by the General Assembly to further insulate itself from the requirements of the OML. In 2024, the Colorado Legislature passed SB157, which was enacted when two lawsuits filed against the General Assembly challenged lawmakers' use of secret meetings and secret caucus votes. SB157 allowed state lawmakers to discuss bills and public policy via email or text without being subject to the OML and required that the quorum of a state public body had to be contemporaneous, avoiding challenges to serial meetings. Such conversations may still be available through a CORA request if the requester knows when the conversation took place and who was in the conversation. The law also allows state lawmakers to meet in-person without disclosing the meeting in advance, so long as public policy or bills are not discussed. State lawmakers claimed the previous laws impeded their ability to have open and frank conversations that they wouldn’t want to be made public.

Voters initiated and approved the first meaningful Colorado open meetings statute in 1972, four years after CORA was created in 1968. The Sunshine Law applied only to state bodies and established stricter rules for open meetings at the Capitol than were provided by a shorter 1963 law, as well as official disclosure and lobbyist standards. The open meetings provisions declared that the formation of public policy was a matter of public business that should not be conducted in secret. Any citizen could seek an injunction to enforce the law. The OML was extended to local bodies in 1991 and has become more focused on local government over time.

Deficiencies and local Impacts

Frustrating as it may be at times, Colorado’s transparency laws already define the boundaries of the questions that the proposed amendment raises. These laws reflect the give-and-take of private and public interests and the realities of government operations. Some recent amendments may have gone too far, but unfortunately, the proposal deems the contours of transparency laws to “have infringed on the fundamental right to know” because those compromises have included limitations.

Despite this pending proposal, municipalities should continue the hard and often expensive work of complying with the OML, CORA, and other laws, while defending their operational needs and the privacy interests of individuals. Be sure to consult CML’s recently updated publication, Open Meetings, Open Records: Colorado’s Sunshine Law and Municipal Government, for more information.