An exception to Colorado public records law has largely shielded investigations into sexual misconduct allegations against public officials from scrutiny. That needs to change.
Last August, the state of New York released an independent report into the investigation of whether former New York Gov. Andrew Cuomo had allegedly sexually harassed state employees. All of it was made public — 165 pages, and not a single redaction.
A month later, here in Colorado, Denver Public School officials released the findings of an independent investigation into the alleged sexual misconduct of DPS Board Director Tay Anderson. Instead of making the entire report public, however, they redacted large portions of the investigative findings (at least 17 of the 96 pages were redacted) and a district court in Denver ruled earlier this year that those redactions were lawful.
If you’re asking yourself why New Yorkers benefit from transparency where Coloradans don’t, the answer lies in an exemption to our state’s public records law that was intended to prevent the disclosure of records of sexual harassment complaints and investigations “maintained pursuant to any sexual harassment policy of the general assembly.” But that exemption has evolved since it was enacted in 1994, becoming incredibly broad to now prohibit the disclosure of “any records” of sexual harassment complaints and investigations, members of the public and public officials included.
It’s an exemption that flies in the face of the spirit of the Colorado Open Records Act, or CORA, which clearly declares that it is “the public policy of this state that all public records shall be open for inspection by any person at reasonable times” except as provided by law. This strong presumption in favor of disclosing government records also requires courts to narrowly construe any exception to CORA’s disclosure requirements.
But what works in theory does not always work in practice.
In practice, this means that virtually no records of sexual harassment complaints and investigations can be disclosed to the public despite the strong public interest in understanding the nature of potentially illegal or unethical conduct by government officials, or private individuals, especially when it involves a matter of public concern.
It was strong public interest that drove reporters from The Denver Post and The Denver North Star last October to seek unredacted versions of the independent report commissioned and paid for by the DPS Board to investigate the sexual misconduct allegations against Anderson, and file subsequent CORA requests 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, even though it agreed that the investigative report — which ultimately found that the most serious allegations against Anderson were “unsubstantiated” — was a public record and Anderson’s alleged misconduct was a matter of public concern.
This meant that the heavily redacted sections of the report stayed that way, keeping secret the most salient and informative evidence of Anderson’s alleged conduct while serving as a board member of Never Again Colorado and as a DPS employee. The redactions blackout virtually all of the report that explored the “evidence that tends to support the allegation” of sexual impropriety and, even more overbroad, all portions of the “evidence that tends not to support the allegations.”
It did not 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 public’s interest in the content of the documents.” The court’s analysis begs the question: Why doesn’t Colorado resolve the disclosure of sexual harassment complaints and investigations like other states do?
At a minimum, the statute should require a public records officer to balance the privacy of the individuals involved with the public interest in knowing the information contained in requested records. Applying the test would not prevent courts from requiring redactions to the name and identity of victims to protect their confidentiality, and Colorado courts have been quite clear about the kinds of records that do not constitute public records when privacy interests are at stake: a public official’s personal diary, the personal cell phone billing records of a public official, and sexually explicit and romantically exchanged emails that are sent between two individuals, to name a few.
Such a balancing test would help ensure that communities are able to better understand and hold public officials accountable for their conduct. Courts have recognized that allegations of sexual harassment involve matters of public concern, and that the unethical conduct by government officials is a matter of public interest. There is also a strong public interest in assessing the efficiency and fairness of investigations into alleged sexual misconduct.
In theory, all public records should be open for inspection by the public. But in practice, bit by bit, laws change, and the promise of transparency wanes. It’s time for Colorado lawmakers to ensure that promise doesn’t disappear.
Rachael Johnson is a Local Legal Initiative staff attorney based in Colorado. She joins the Reporters Committee from Hollingsworth LLP in Washington, D.C. where she practiced complex commercial litigation.