Don’t override Polis’s veto on a bill that slows down the public’s access to records (Opinion)

The Colorado General Assembly is considering overriding Gov. Jared Polis’ wise veto of Senate Bill 77, which would allow government agencies to take longer to give the public documents that are subject to the Colorado Open Records Act. The most dangerous section of the bill also includes a carve-out for special treatment for journalists.

The new law will allow the press to receive public records faster than the general public. Critics were right in their concern about allowing the custodians of public information to decide who is a journalist. Maybe I will find out soon if I am, or am not, a journalist after I file my first open records request under the new law.

Colorado lawmakers are currently counting votes to see if they have enough to override the governor’s veto, and could vote as soon as Friday if they do.

In Colorado, as in many states, the question periodically arises: Should the press be treated differently, perhaps given special privileges when requesting access to state public records?

The answer, rooted in the enduring principles of democracy, fairness, and the public’s right to know, is clear: The press should not be treated differently. Instead, journalists and ordinary citizens alike should have the same equal access to government-held information.

Colorado’s open records law, like the federal Freedom of Information Act (FOIA) and similar statutes across the United States, is predicated on a simple but powerful idea: Government records are the property of the people, not the agency holding them. The Colorado Open Records Act (CORA) does not draw distinctions based on who is making the request. Whether you are an investigative reporter for a major newspaper, a concerned parent, a business owner, or a curious student, the law recognizes your equal right to seek information about how your government operates.

History offers cautionary tales about the dangers of allowing government agencies to decide who counts as “the press.” In authoritarian regimes, the state routinely distinguishes between “approved” and “unapproved” journalists, granting access to the former and denying it to the latter. Such practices are antithetical to the American tradition of an independent, adversarial press.

Indeed, the very purpose of open records laws is to prevent the government from acting as a gatekeeper of information. By not making records available to all at the same time, the law ensures that no one, neither government officials or private intermediaries, should control the flow of information to the public.

The beauty of a “requester-blind” system is that it avoids these pitfalls. The law applies equally to all, regardless of motive, affiliation, or institutional backing. This not only protects the integrity of the process but also fosters public trust in the fairness and impartiality of government.

At a time when trust in institutions is at a historic low, maintaining the legitimacy of government is more important than ever. One way to restore faith in public institutions is to ensure that they operate transparently, treat all citizens fairly, and resist the temptation to play favorites.

The question of whether the press should be treated differently when obtaining state public records in Colorado is at its core, a question about the kind of democracy we want to have. Do we believe in a system that privileges certain voices over others, or one that empowers all citizens equally? The answer is clear. The press should not be treated differently, neither privileged nor penalized, when seeking public records. The rules should be the same for all, applied fairly and consistently, in service of the public interest.

Journalists should not be in a position to be asking for approval from hundreds of Colorado government custodians of public records.

We should not want any governmental agency to have a law allowing them to play favorites with public records

We should not want some public records to be put into the slow lane for public records requests, journalist or not.

We all should want public records in Colorado to remain public records because the public has a timely right to know.

The override of Polis’s veto comes at a time when transparency is under threat nationwide. In recent years, states across the country have chipped away at open records laws.

Attempts to define “journalist” in statute or policy often lead to arbitrary or outdated distinctions. Such definitions risk excluding new forms of journalism and privileging legacy organizations over emerging voices. They can also be weaponized, with governments or agencies refusing access to those they deem not “real” journalists, thus undermining the very transparency such laws are supposed to guarantee.

Moreover, giving journalists special access can have a chilling effect on citizen journalism and grassroots oversight. If ordinary citizens know they will face hurdles that professional journalists do not, they may be discouraged from seeking records themselves. This undermines the spirit of civic participation and the democratization of information.

Gov. Jared Polis wrote recently, “To ensure fairness and confidence in public transparency, all legitimate requests for public transparency under CORA should be treated equally under the law, without preference for some requestors over others.”

Jim Martin was a University of Colorado Regent and can be reached at jimmartinesq@gmail.com.

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