The Buena Vista School District will now release board information packets to the public in advance of their bi-monthly meetings.
“As an elected board, we value input from our community and hope that our constituents will be engaged and informed on our work for the students of Buena Vista,” said Suzette Hachmann, school board president.
The district had been releasing the packets to the public after meetings, following a change in policy in the last year or two, Hachmann said.
The Times requested the information packet for the school board’s Oct. 25 meeting on the morning of Friday, Oct. 22.
“The board packet will be posted on our website after the board meeting. The distribution of the board packet before the meeting is only for board members,” replied assistant superintendent Verena Bartling.
Subsequently, a Colorado Open Records Act request was submitted to the school board members and superintendent. Per Colorado law, readily available public records must be provided immediately upon request.
Board member Erik Phillips said information packets are typically distributed to board members on the Thursday before the meeting.
Hachmann said the district would respond to the CORA request within 3 working days.
“The documents you have requested are not reasonably available at this time. We will respond within 3 business days,” she said, after being advised that readily available documents ought to be provided immediately.
“Public bodies should make board packets available to the press and public prior to meetings so they can read about the issues and follow along as those issues are discussed,” said Jeffrey Roberts, executive director of the Colorado Freedom of Information Coalition. “Because the packet has been prepared for board members, it is readily available and requesters should get it right away. CORA’s 3-working-day response period only applies to records that are not readily available at the time of a request.”
Information packets for Buena Vista’s board of trustees meetings are released on Fridays before their bi-monthly Tuesday meetings.
“They’re on the website, so that the public can be informed – so they know what the packet is,” said town clerk Paula Barnett.
“It’s normally available the Friday before the meeting,” said Salida schools superintendent David Blackburn, speaking about the board packet for his district’s meetings.
The Chaffee County Board of County Commissioners and the Salida city council also follow this practice.
“CASB’s resources cite Colorado’s Open Records Act (CORA), which provides that materials distributed to board members ‘for their use or consideration in a public meeting’ (except those discussed only in executive session) are not protected by the work product or deliberative process privilege and must be released by a district,” said Susan Meek, director of strategic engagement and communications for the Colorado Association of School Boards.
“However, CORA’s definition of deliberative process or work product privilege is subject to varying interpretations as to when materials distributed to board members lose this protection and become public records. One interpretation is that materials provided to the board in anticipation of an upcoming board meeting should be considered public records at the time they are provided to the board; the other interpretation is that they should be considered public records when they are actually discussed at the board meeting,” she said.
The BVSD board packet for the Oct. 25 was released to the public on the morning of Tuesday, Oct. 26.
Open records laws in Colorado also stipulate that, upon request, a denial of access to a public record must be followed by a statement citing the law or regulation which justifies the denial.
The Times requested such a statement to support the denial of release of the board packet immediately following our request on Oct. 22.
The district’s attorney, Holly Ortiz, provided a response and instructions to direct all subsequent communications to her.
“As you noted in your email dated October 26, 2021, if the District had denied your request, you would be entitled to an explanation of the basis for the denial. In this case, the District did not deny your request. It provided you with the requested records on October 26, 2021,” said Ortiz. “Despite the fact that the request was not denied, the District has explained the basis for providing you the record on October 26. As the District previously explained, prior to providing you with the requested record, the District properly sought legal advice regarding whether the board packet and all the documents therein were, in fact, open records subject to public inspection or if they fell under any of the exceptions and/or privileges noted in CORA.
“Once legal counsel was able to review the records and confer with the district, the requested records were provided to you.”
Colorado Press Association attorney and CFOIC board chair Steven Zansberg issued a reply on behalf of The Times, making numerous references to case law.
“Putting to one side the formal statutory bases for providing the public with access to board packets in advance of the public meeting at which those documents will be discussed, there are strong and logical public policy reasons to do so,” said Zansberg. “The public cannot meaningfully observe the back-and-forth discussion among the school board members who reference documents’ contents without themselves having contemporaneous access to those documents.
“This is precisely why the vast majority of school boards in Colorado post their board packets, along with the agendas, on their websites in advance of their public meetings.”
Zansberg concluded by requesting that the board reconsider the its policy and make its information packets available to the public in advance of its meetings.
Replying to Zansberg and The Times, Hachmann said Tuesday afternoon while the district and its legal counsel believe their working policy was within its statutory right, the district would now make packets available at the meetings and by request one day prior to the Monday meetings.
Additionally, she said the district would work to better inform the public when to expect meeting postings, agendas, packets, and guidelines for public participation.
“We believe these actions will facilitate even more meaningful communication between our board and our community,” she said.