A bill working its way through our state legislature, SB 25-077, is the subject of vociferous debate, both inside and outside the Capitol’s chambers, about whether “the press” should be treated “more favorably” than other members of the public who are not professional working journalists. A handful of advocates from “non-traditional” media outlets and online speakers/bloggers have used their platforms to denounce the bill’s “carve out” of “the press” — as that term is already clearly defined in existing state statutes — from the bill’s imposing of additional hurdles on public access to our records (the public’s records, made, maintained and kept at taxpayer expense). With all due respect, these critics focus on the wrong portion of the bill. It’s not the so-called “press exemption” that’s the problem, its what the press is exempted from: an additional set of unjustifiable and onerous roadblocks to public access.

To be clear: Sen. Cathy Kipp’s bill, in its current form, does not grant the press access to any records other members of the public are prohibited from accessing. (Although, truth be told, the Colorado Open Records Act already allows credentialed journalists to access certain otherwise “confidential” information in public records, to confirm they are reporting on the right person, that members of the public are not permitted to access). 

Instead, the bill changes existing law by extending the deadline for records custodians to respond to a records request from three business days — a provision never invoked in court because a records custodian did not comply — to five business days. In other words, it authorizes additional delay in all cases, and further provides an additional 10 business days in “extenuating circumstances.” The bill also allows records custodians to charge the actual cost of producing public records, with no cap on hourly fees, to requesters who the custodian independently determines intend to use the information for financial gain (e.g., selling the information to paid subscribers, or using it to solicit private business).

These are the bill’s provisions that make it bad public policy, not the so-called “press exemption” or “carve out” from these blatant anti-transparency measures.

Of course, there are valid public policy reasons why working members of “the press” should be afforded “preferential treatment”: the Supreme Court has repeatedly recognized few of us have the time and energy to travel across the state to monitor court proceedings, city council meetings, legislative hearings and other governmental activities, so we rely on members of the press to do so on our behalf. The press serves as “surrogates for the public” by accessing and reporting on the conduct of public business by our public servants. That’s why the press is routinely provided reserved seats at the front rows of courtrooms in high-profile cases, why only they can (with judicial approval) bring electronic recording technology and cameras into courtrooms to cover trials, and why they have a statutory privilege (like doctors, therapists and lawyers) against being compelled to disclose confidential information they receive from their sources.

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But the point here is not whether the press is “deserving” of yet another “special” or “preferential” dispensation, by exempting “only them” from the new and unjustifiable delays and costs Sen. Kipp’s bill imposes on “the rest of us.” It’s that those additional hurdles, roadblocks, costs and delays create significant additional disincentives to allowing We The People to access our records.

Removing the “press carve out” from SB 25-077 will result only in subjecting professional working journalists to the same onerous measures that should not be imposed on any of us. Indeed, the removal of the press carve out would make it clearer none of us deserve to be treated this way by our elected representatives in the legislature or the governor’s office. I’m fine with treating the press no differently than “the rest of us” when it comes to accessing our records, so long as we’re all able to access them without unnecessary cost or delay. The real problem with this bill lies not in its exemptions, but in the rest of it.

Steve Zansberg is a First Amendment and media lawyer in Denver and serves as president of the Colorado Freedom of Information Coalition.