Coloradans seeking to better understand state government or hold it accountable may be hampered by the fact that emails to and from government employees are in many cases wiped out within one month.
The emails of state government employees are usually public records, subject to the Colorado Open Records Act (CORA). But a Denver Post investigation found that most employees' inboxes are purged regularly and there are wildly inconsistent email retention policies across state government, which employs some 30,000 classified staff members.
At least two state lawmakers say they're interested in fixing this inconsistency next year.
After learning recently that one state department was starting a policy of purging most emails after 30 days, The Post requested email retention policies for 22 state offices and departments. Their retention schedules ranged from 30 days to seven years, with one office keeping emails permanently.
The 100 members of the state legislature have no uniform retention policy. At least five entire state departments have no retention policies at all — several said they're working to amend that — which means employees have broad discretion over which email records they keep and which they delete.
The governor's office said it used to be among those with no policy, but that Jared Polis, the first-term Democrat known for his tech savvy, decided to change that after he was elected.
"When we came in, some agencies had policies, some didn't," Polis said during a meeting with The Post's editorial board last week. "There's danger in not having a policy because it means every employee can just delete everything, and some units were deleting everything."
The governor's office adopted a policy that calls for emails to be deleted within 30 days, in general. There are exceptions — emails related to ongoing litigation, for example, or emails that employees specifically file to "do not delete" folders — but the bulk of the email communication conducted by the governor and the public officials in his office has a very short lifespan.
All but three offices that respond to the The Post's inquiries with a policy said they delete emails within 90 days.
What results is a constant auto-vanishing of a communications involving state officials, an indeterminable amount of which is relevant to public business in Colorado.
John Cooke, a Republican state senator from Weld County, learned firsthand what can happen when government fails to retain email records. Believing that state officials had inappropriately colluded, Cooke in August 2018 requested emails to and from Mike Silverstein, the former top official at the Colorado Air Quality Control Commission. He learned that Silverstein's employment with the state had ended just days before the records request was filed.
"In regards to records held specifically by Mike Silverstein, there are no records responsive to your request," a records custodian wrote Cooke, in a letter published recently by the Colorado Freedom of Information Coalition. "Mike Silverstein ended employment with the Department prior to your request and his email and network accounts had already been deleted."
Said Cooke in an interview in south Denver this week, "You can't tell me a policymaker at that high a level, that they'd destroy all of his electronic records. How can that possibly be?"
And yet, as The Post's investigation confirms, this happens all the time in Colorado. Emails from low- and high-level bureaucrats alike, concerning everything from the banal to the meaty, are routinely and often swiftly disappeared.
Cooke said he "absolutely" plans to bring a bill next year.
"I'm probably going to run a bill to bring transparency to state government and to say you have to keep emails for at least about three years," he said. He wants to bring email law in line with Colorado's Uniform Records Retention Act, which requires documents be held for three years in most cases. It was written to minimize "paperwork burden."
His Senate colleague, Eagle's Kerry Donovan, is interested in a policy change, too. The Democrat said she has no idea whether she'd back a bill next session, or what that bill might look like, but she has reached out to journalists and politicos in an effort to find some resolution.
The Colorado Open Records Act in many cases effectively thwarts public access to records, as Donovan acknowledges. Requesting parties are frequently quoted prices of hundreds and thousands of dollars — in extreme cases, even hundreds of thousands — for agencies to fill their records requests. This ensures that in certain cases, only individuals and groups who can afford public records can access them.
On occasion, responding agencies will require requesting parties to submit payment in person, using cash or check. This ensures that only those who live near the agency in question, or have time to drive to that agency — which in most state cases will be in Denver — can even submit their records request.
That CORA is not accessible to many — not to mention the fact that countless state email records are destroyed every day — concerns Donovan.
"It's an appropriate time to revisit how CORA is working and not working," Donovan said this week.
Cooke, who is early in talks with the Freedom of Information Coalition, wants to keep his 2020 bill limited to the issue of email retention.
"It needs to be a narrow focus at this point," he said. "If we can get it passed now, we can always expand it to talk about cost, efficiency."
Donovan said she's open to a potential bill, or package of bills, to address more than one of CORA's holes.
"If you do a broad stakeholder process and write effective legislation and be open to the process, I think you can do broad CORA reform in one session," she said. "But CORA elicits strong feelings from a lot of different sectors and so I could see it being a multiyear project. . With something so important, I wouldn't want to rush it."
Both state senators said they anticipate the email retention policy won't be easily rewritten.
Cooke wants to find a way to exclude certain emails.
"If you're a non-policymaker, a secretary or a janitor, or you have emails about what you're doing for dinner tonight or picking up the kids, you don't have to keep that," he said. "But if you're a policymaker or a high-level bureaucrat, those records need to be kept open."
The governor has not indicated an interest in CORA reform. But he does want every department to have a policy. Among those that told The Post they have no policy as of now: the 3,300-employee Department of Transportation and three other departments that each have at least 1,300 employees.
"The Governor has asked the agencies to put in place policies that work for their specific agencies," Conor Cahill, Polis spokesman, emailed this week. "We want to ensure that state employees have clear direction as to what they need to save and what can be deleted."