Legislature chooses to bring e-mail under open records law

COLORADO–The state legislature passed a bill in late April which would bring e-mail between government entities within the ambit of the state’s open records law.

The bill, endorsed by the Colorado Press Association, will apply to all government entities, including the legislature. It encompasses “digitally stored data, including without limitation electronic mail messages” created by government bodies and treats such data as correspondence subject to disclosure under existing law.

The measure, which is expected to be signed by Governor Roy Romer, also will prohibit members of the state’s General Assembly from using e-mail to discuss pending legislation but allows discussion of other matters.

Also exempted from the law will be materials subject to attorney- client confidentiality; predecisional drafts and working papers of public officials or bodies; and legal and factual research undertaken by staff or service agencies of the general assembly concerning future legislation.

The bill would preserve the government’s right to invoke the “public interest” exemption to disclosure in response to and pending the conclusion of lawsuits seeking such disclosure.

State officials are not obligated to preserve e-mail messages unless the recipient has previously segregated and stored them because of their historical or evidentiary value. (S.B. 212; Counsel to the Colorado Press Association: Tom Kelley, Denver)