May 24, 2023 09:00 AM UTC

Colorado House Republicans’ Private ‘Group Chat’ May Violate Open Meetings Law

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• by: Erik Maulbetsch

(Rules for thee, but not for Matt Soper — Promoted by Colorado Pols)

Despite telling a radio host that he used a “group chat” to direct his House Republican colleagues to walk out on the Legislature’s final day, state Rep. Matt Soper (R-Delta) now claims he has no record of that chat message. The same goes for all members of the House Republican leadership, who jointly responded to the Colorado Times Recorder’s open records request by saying they have “no responsive records.”

Speaking to KNUS radio host Deb Flora on May 9, Soper claimed credit for leading the GOP protest on the final day of the legislation session, when Republicans walked out of the House chamber. Soper said he directed his GOP colleagues to leave via a group chat.

Soper: “They were running an amendment. So we have the Rule 16 vote. We were talking. Do we walk out? Do we not walk out? And we have a group chat. And I wrote, ‘Walk, Walk now.’ And there was still some negotiations about, well, do we wait for two more of these votes? And I just packed up my bag, stuck my laptop in it, walked around to the front, and I walked straight down the center aisle.”

So how can Republicans say they have no records after one of them publicly described the content, date, and time of a specific message he says he sent?

The question highlights a glaring hole in Colorado’s Open Records Act (CORA): there isn’t any requirement for lawmakers to preserve emails or other digital communications. In fact, the state Legislature recommends its elected officials delete their emails after 30 days.

“CORA does not contain a specific requirement regarding the length of time a custodian must maintain a public record,” explains the state office of Legislative Legal Services. “Custodians and agencies can make their own determination of the appropriate length of time a record must be kept or archived. For example, the policy adopted by the Colorado General Assembly recommends the deletion of electronic mail messages within 30 days in most circumstances.”

Furthermore, open records requests can only be fulfilled if the requested records still exist. Most common messaging apps such as Signal can be set to delete messages automatically after a certain number of days, hours, or even immediately after reading. Presuming that Soper and his colleagues were using one of these apps, the messages could very well no longer exist.

This issue isn’t new. Jeff Roberts, executive director of the Colorado Freedom of Information Coalition (CFOIC), noted the problems in a report his organization released back in October 2019.

“It’s a fairly obvious point, but if a public record evaporates into thin air – or is tossed in the trash or shredded – before a records request has been submitted, then the accountability mandated by CORA is undermined,” said First Amendment attorney Steve Zansberg, president of CFOIC.

Soper’s text to his GOP colleagues, however, may violate another section of Colorado code: the open meetings law.

As CFOIC’s open government guide explains, “members of boards and commissions risk violating the open meetings law when three or more (for a local public body) use email or text messaging to discuss public business, either in a single transmission or in succession. Such electronic conversations are inherently closed because there may be no way to provide advance notice and allow the public to “attend” and observe the meeting.”

According to Colorado law, “meeting” means any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.

Via email Roberts also noted a 2004 Colorado Supreme Court case ruling that states, “for a meeting to be subject to the Sunshine Law, there must be a demonstrated link between the content of the meeting and some policy-making responsibilities of the public body.”

Asked if he believes a message from one elected official to others telling them to walk out of a legislative session would meet that requirement, Roberts replied, “I would say it relates to their policy-making responsibilities.”

Roberts says CFOIC is working on a new report examining Colorado’s open records laws and retention guidelines that he expects to publish within a month.

This isn’t the first time Soper has given secret direction to fellow Republicans. During the 2021 redistricting process, he hosted a private Zoom meeting for Western Slope Republican party officers and activists in which he suggested arguments for them to make to the independent commissioners.

“This is really important for everyone to understand,” said Soper. “It’s not just about incumbents, but it’s about power on the Western Slope for Republicans in the future.  I’m going to tell you this, but I never want you to mention that you heard this coming from me because the commission really wants to focus on competitive seats.”

Soper did not respond to a request for comment as to which group chat app the House GOP uses to communicate and whether he has any concerns about communicating with multiple fellow legislators using a means that prevents the public from observing or reviewing the proceedings. This article will be updated with any response received.