For anyone concerned with Coloradans’ right to know what their government is up to, the yearly session of the General Assembly typically presents both good and bad. This year was no exception: Some good work got done, some bullets were dodged and some opportunities were missed. On balance, though, not bad.
One clear win was the passage of House Bill 1290. If signed by Gov. John Hickenlooper, it will reinforce the right of members of the public to record police actions as long as those doing the recording are not interfering with the police or otherwise breaking the law.
Under the First Amendment, Americans already have the right to record police activities – and with the proliferation of cellphone cameras, they clearly already are. But as recent events around the country have shown, that right is not always understood or respected. By allowing for civil lawsuits against law-enforcement agencies if they seize or destroy a recording, HB 1290 provides a framework and incentive to emphasize in officer training that the public has the right to record. It also outlines a process by which law enforcement can obtain a record made by a bystander. The governor should sign HB 1290.
Two other measures that drew attention did not make it to Hickenlooper’s desk. One would have made the State Public Defender’s Office subject to the Colorado Open Records Act. While a good idea in principle, the motivation for it was questionable. Supporters hoped that it would force Public Defender Doug Wilson to reveal how much he has spent to keep Aurora movie-theater shooter James Holmes from the death penalty, a number that would presumably be used to argue for cutting his budget. The obvious flaw in that thinking is that it is Wilson’s job to defend Holmes – regardless of how many legislators think he should be killed.
Another bill that died was the worst threat to freedom of this session. Ostensibly aimed at drones, it would have made it a crime to photograph or record anyone without their permission in circumstances where they have a reasonable expectation of privacy.
Of course, if one imagines a drone taking video of a woman sunbathing in her fenced backyard, that language sounds good. But what if that backyard was instead the scene of a clandestine meeting at which a public official was handed an envelope full of cash from someone seeking special treatment? Is that covered by a “reasonable expectation of privacy”? And does the state really want to get into the business of regulating drones and photography?
State Sen. Kevin Lundberg, R-Berthoud, said, “In trying to strike that balance between allowing the use of these image-capturing and sound-capturing devices and respecting the privacy of individual citizens, we haven’t gotten there.”
No, we have not. And restricting the free flow of information is not how to get there.
A Senate committee killed a bill that would have required school districts to share spending information with the state Department of Education for posting on the department’s website. That could have been useful.
And a bill was approved that will require a fiscal-impact statement be included with each ballot initiative when submitted to the title board, not just after it makes the ballot. Getting information early is always better than later. Critics complained that will make initiatives more difficult, but that can be seen as welcome, too.
Protecting the free flow of information is an ongoing challenge, especially in that threats to that freedom can come wrapped in good intentions. At the state level, the struggle will no doubt resume in January.
