Social Media and Colorado’s Sunshine Law

Social media makes it easy for any state or local government body with advisory, policy-making, or rule-making authority to discuss matters before them.  The problem is if these social media accounts are private and not accessible to the public then it is a violation of Colorado Sunshine laws.

Sharing is caring under Colorado’s Sunshine law.

The public policy for the state of Colorado set out in the Colorado Revised Statutes is “that the formation of public policy is public business and may not be conducted in secret.”  Colo. Rev. Stat. §24-6-401.  That seems like a pretty good goal — governmental transparency is a theme of this blog.

What makes social media dangerous to Sunshine laws is that it can be made private and very difficult to find out the contents of the conversations.

Denver-City-Council-Twitter
Denver-City-Council-Twitter- @DenCityCouncil

I ran across what appears to be an official Twitter account of the Denver City Council.  The City and County of Denver Seal is used for the avatar.  Also, the link supplied directs users to the Denver City Council homepage.  On top of that all, the account is set to private, meaning that unless an individual is granted access, the content of the tweets remains private.  This is probably the biggest reason why I think this may be an official account. Probably most of the spoof accounts, or people trying to impersonate government officials have their accounts open.  They want the attention that a fake twitter account can garner.  Since the account is set to private, this does not generate any attention, which to me is a red flag.

The communications concerning matters before the Denver City Council are governed by the Colorado Sunshine law.  “Local public body means any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision,
or an official thereof, has delegated a governmental decision-making function but does not include persons on the administrative staff of the local public body.” Colo. Rev. Stat. §24-6-301(1).

All meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken are declared to be
public meetings open to the public at all times.

— Colo. Rev. Stat. §24-6-402(2)(a).

There are thirteen members of the Denver City Council.  This twitter account only has five followers.  That would be less than half of the members of the Denver City Council.  Assuming for a minute, that these really are tech savvy City Council members who wanted an additional way to communicate (several members of the Denver City Council have formal individual accounts on Twitter) it would only take two of them to communicate about a matter before City Council to break the Sunshine law because the communication is private.

Although some public officials and branches of the Denver City and County government  have treated the @DenCityCouncil as an official government Twitter handle.

I have no way of knowing if this a real Twitter account of the Denver City Council; however, contextually, this does look suspect.  I really wonder why it is private.  Who is talking and what are they talking about?

I am stumped trying to think of another government agency other that has a private twitter handle.  Even the ultra-sensitive National Security Agency (NSA) does not appear to have an official private twitter handle.

So what can individuals do if they feel like they are being left out of the loop?  Again, the Colorado General Assembly puts the burden on the individual to sue — just like with public records requests.

“The courts of record of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state. In any action in which the court finds a violation of this section, the court shall award the citizen prevailing in such action costs and reasonable attorney fees. In the event the court does not find a violation of this section, it shall award costs and reasonable attorney fees to the prevailing party if the court finds that the action was frivolous, vexatious, or groundless.”  Colo. Rev. Stat. §24-6-402(9).

Unlike with the public records act, there is no penalty for officials who knowingly and willfully violate the Colorado Sunshine law.  Individuals are just expected to sue, and if they win, they are given access next time — there is no penalty for government officials who intentionally do not obey the law.

At least the Colorado General Assembly is doing their part to keep lawyers employed.

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