An investigation by The Times shows that local government offices in Chaffee County are not consistent in whether to commit Zoom chats to the public record.
Experts in Colorado’s sunshine laws and records retention policies agree that Zoom chats should included in public records. But virtual and hybrid-virtual meetings are fairly new and not formally or explicitly mentioned in law and policy.
In a letter to the editor published Aug. 25, resigned former Buena Vista town trustee Amy Eckstein claimed an inappropriate message had been broadcast to all 29 participants of a board of trustees meeting in December 2020.
“A board member made highly disparaging/derogatory comments about me privately to someone else (either staff or another board member),” said Eckstein. “This was done in the Zoom chat feature. The message inadvertently went to the entire meeting.”
A review of the video recording showed that trustee David Volpe apologized near the end of the meeting.
“I feel the need to apologize, to apologize to everybody that’s here tonight. I had a lapse of judgment, made a comment in the chat room that was unbecoming of a trustee,” he said.
Eckstein did not comment further on the chat message.
Audio and video recordings of trustee meetings are retained per the town’s municipal records retention policy, adopted in late May 2014. But upon requesting the Zoom chat logs through a Colorado Open Records Act request, it was revealed that such records are not retained.
“Chat messages are not captured,” said town clerk Paula Barnett in response to the request.
According to Zoom support documentation, chat message storage is set by account owners or administrators.
“By default, messages are stored on the cloud for 2 years and messages are stored on local devices for 1 year” (support.zoom.us/hc/en-us/articles/115005516426-Storing-Chat-Message-History).
Town administrator Phillip Puckett confirmed Barnett’s statement when asked about official town policy.
“We do not retain the chat from Zoom meetings — only what is entered into public comment via speaking during public comment and what is submitted to the town clerk in writing either via email or handed in during the public comment period of the meeting,” said Puckett.
“The chat function of Zoom is really utilized to identify who wants to speak during public comment or to address any technical issues that may arise. Those that use the chat function — it would be similar to a side discussion in an in-person meeting but is not part of the public record of the meeting,” he said.
Drew Nelson, Salida city administrator, said the same policy applied in his office.
The Colorado Municipal League’s web site says one of the league’s goals is to promote principals of good governance and civic dialogue.
“CML does not have a position on this question. Our members are responsible for following CORA and the open meetings law,” said Sarah Werner, CML engagement and communications manager.
Chaffee County public affairs officer Beth Helmke said the county does retain Zoom chat messages.
“We do not to my knowledge have an explicit policy related to that,” said Helmke. “That said, I do believe that they are retained just as a part of the standard Zoom default.”
Brian Berger, town administrator of Poncha Springs said the same.
"CORA request: if I got it, I give it to you," he said.
Paul Levit handles records management at the Colorado State Archives, whose purpose is to preserve the administrative and documentary history of Colorado. It does so by managing, collecting, preserving and providing access to state and local government records.
Levit said committing Zoom chats to the public record is good policy, but that sunshine laws and records retention policies have not yet been updated for virtual meetings.
“Zoom chat should be part of the public record. In my eyes, it is no different than standing up and testifying in a meeting or communicating with government officials via email or letters,” said Levit. “It is a way for folks to express their opinion without necessarily vocalizing them directly to the government officials.
“That being said, as it stands right now we have not really formalized anything in regards to virtual meetings,” he said.
“If a trustee participated in the chat during the meeting, I would agree that it was part of the meeting, especially if the trustee made the comments to another board member,” said Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition.
Roberts acknowledged that the issue presents something of a gray area due to the lack of specific mention of chat messages in virtual meetings.
Tim Regan-Porter is the CEO of the Colorado Press Association, which was established in the 1800s and today exists to forward press freedoms and media rights.
“If they do have the transcript, it should be part of the pubic record,” he said. “However, Colorado laws around records retention aren’t as strong as we’d like them to be (even without regard to new technology). If they didn’t save it, there’s not much recourse, unfortunately.”
So while virtual government meetings may be here to stay, the chat messages exchanged within them may not be.