The Colorado Open Records Act request was never meant to be a "gotcha."
The Denver Gazette was looking to confirm whether Denver Public Schools (DPS) Board of Education Director Scott Baldermann’s child attends one of the middle schools in an innovation zone he will be voting whether to dissolve later this month.
The short answer is yes — Baldermann’s child does.
But it wasn't known in a verifiable way when the public information request under Colorado’s Open Records Act (CORA) was sent on March 21.
The email was already in the Denver Gazette's possession, but needed to be verified through official sources.
It was an email from Baldermann to Grant Beacon Middle School Principal Jennifer Anderson on Aug. 15, 2022, in which the board member took issue — as a parent — with the school’s promotion and retention policy. Baldermann sent the email from his personal email account and not from his official DPS email.
The district’s CORA officer, Stacy Wheeler, responded the following day saying: “Denver Public Schools is not in possession of any documents responsive to your request.”
Public information laws can differ wildly from state to state. But can email be deleted in Colorado and forever erased from the public record in just eight months?
The answer is yes.
“I think government does this all the time,” said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.
Formed in 1987, the coalition promotes the freedom of the press and open access to government.
Record retention is not a new issue.
Roberts wrote about it in 2019, following a report the coalition commissioned by a University of Denver law student to research the laws that govern the retention of public records, identify best practices and make some recommendations.
Roberts hoped that report would “start a conversation about how long state agencies and local government entities should keep emails, text messages and other electronic communications that concern public business.”
Although the state archives law requires agencies to have a retention policy, it does not define an email message as a record unless the recipient retains it as valuable government data, Roberts said.
Both federal and state open records laws do not require public officials to disclose whether a record has been destroyed, or in this case, deleted.
It wasn't until the Denver Gazette disclosed to Wheeler that it already had a copy of the email did she reveal: 30 days after an email is deleted it is gone forever.
DPS policy states electronic communications on district computers or communication systems “shall be retained only as long as necessary.”
Officials were unable to clarify Friday who makes this determination.
The policy further encourages deleting emails on a routine basis.
Later, the DPS's record-keepers found the email that Baldermann sent from his personal account.
Colorado’s Open Records Act, Roberts said, doesn’t offer meaningful guidance about record retention and by failing to do so leaves much of the decision making to the individuals creating or receiving the document.
Jill Beathard, the law student commissioned by the Colorado Freedom of Information Coalition, recommends lawmakers clarify the state’s retention laws, bolster enforcement and use electronic records management software that automates retention.
She also suggested what’s called the “Capstone” approach — developed by the National Archives — which assesses the account owner’s position and not the content of the email. So, the higher the government position, the reasoning goes, the more likely the content of the email will be of value to the public.
As state law stands now — and there is an effort to change this — public records are routinely lost to user discretion, apps, such as Snapchat and Confide or accounts being deleted once a government official leaves office.
In theory, open records serve to advance the goals of a free society by allowing the public a glimpse or insight into the inner workings of government. The presumption is a transparent government leads to higher engagement by citizens, and their interplay ultimately makes for better decisions.
But, as Beathard — who is now a staff attorney at Project Safeguard, according to her LinkedIn profile — wrote: “Open records laws cannot serve their purpose if requested records no longer exist.”
Editor's note: DPS found Scott Baldermann's email after this story published. This story has been updated to reflect that development.
