Edwards: Colorado Open Records Act goes ‘native’

Saturday, Sept. 9, 2017 7:50 AM
Anthony Edwards

Important changes to the Colorado Open Records Act went into effect last month. So, what does it mean and why do we care?

CORA is the law allowing the public to access government records. For example, in wage-theft cases, digital information from the Colorado Department of Labor where a violation is found is available to the public under CORA, and may establish a pattern of employer abuse. The most substantial change is now electronically stored information must be made available to the public in the format in which it was created, referred to as “native” format, where hidden data or “metadata” resides.

Examples of commonly created native files include: Microsoft Word (.doc, .docx), Excel (.xls, xlsx), PowerPoint (.ppt, pptx) and Outlook (pst, ost, msg). In some cases, native file formats require software tools (e-Discovery) to process and convert all metadata to become fully searchable. Before this amendment, records could be produced in any format the agency wanted, often non-searchable or sortable, such as paper hard copy.

Metadata helps us use and interpret information beyond what is seen in hard copy. Specifically, it is stored information, which, depending on file format, can provide data such as date created, author, who changed it and when, and the validity of documents and files. For example, digital photographs – including from cellphones – carry dozens of embedded fields such as date and time taken, the camera type, settings, exposure, lighting and even precise geolocation data.

Whether you belong to a watchdog group, serve clients interacting with government entities, or work within a government agency, this is critical data. It serves as a digital fingerprint, which combined with other information, verifies circumstances or exposes discrepancies. Think about law enforcement body cameras: Personal narratives are far less credible than an actual video record. Yet, that data is not “hidden” like it is in written or digital documents.

Native files and metadata have been used in civil and criminal cases for years. Non-altered digital documents and files reflect factual, non-contestable information. For example, a Fitbit or ski pass may disclose workers’ compensation fraud if an “injured” worker skis 20 runs a day for 30 days per season. In a discrimination or retaliation lawsuit, metadata may disclose the deletion of a damning sentence in an evaluation or write-up. A contract case might disclose a backdated memo or an altered organizational chart.

CORA now catches up with the legal world by providing transparency in government records. For example, budget files associated with government projects can provide information concerning changes and overruns for misallocation of funds determinations. Dates associated with email chains and attachments can provide context to government actions or inaction.

Until now, open records responses often converted files to a TIFF image or PDF format, or printed copies in paper form. While this may be appropriate in some circumstances, the requesting party receives a file different from what was requested and how it was originally created. The embedded data disclosing the origin and history of the files are lost in conversion.

This transformation can literally change parts of the file contents. Many of us have seen printouts of spreadsheets where columns were missing. Word documents that include comments and tracked changes often disappear entirely during the conversion process. Converting native documents also provides a convenient way to hide key documents in a mountain of unsearchable irrelevance.

The amended Act includes several changes. Now, CORA disclosures require government responders to produce documents that are “technologically or practically feasible.” Thus, the responder must provide the documents in a searchable or sortable format. If that’s not feasible, the responder must provide a written rationale for not doing so. The decision can be challenged, however, if successful, attorney’s fees will not be awarded unless the record holder acted in an “arbitrary and capricious” manner. In addition, plaintiffs denied public records under CORA will now have to wait 14 days to challenge a denial in court under the new law.

The native production provision, which enhances Coloradoan’s access to government information and ensures the transparency expected in the 21st century, is the most important change to CORA providing citizens with a tool for ensuring greater government accountability.

Anthony Edwards is a business lawyer and e-Discovery specialist with Sholler Edwards LLC in Durango and Silverton. He can be reached at (855) 649-5884. This article is informational only and is not intended to be legal advice in any particular case.