Tag Archives: colorado general assembly

Breaking Down Colorado General Assembly’s Publication Contract

It seems like the Colorado General Assembly gives LexisNexis a super sweet deal. LexisNexis can can gouge citizens who want to be better informed because they are the sole publisher of the statutes.  LexisNexis also appears to have some sort of monopoly over publishing the state statutes on the internet.  It is an apparent state-wide policy that only LexisNexis can publish the statutes in their entirety on the internet (other than the legislature’s concealed, semi-private copy).  Probably the kicker is: concerned citizens who want to learn the law by reading the statutes on the internet must sign legal rights away to LexisNexis by forcing them to enter into a contract of adhesion (a forced contract because there is no other seemingly available option online).

What does the Colorado General Assembly get in return?  The Legislature’s no dummy, they write the laws.  And they have a team of lawyers working for them – the Colorado Office of Legislative Legal Services.  So they should have got something good in return for giving LexisNexis so much.

Through my first open records request, which you can see here (at the bottom of the post), I asked for and the Colorado Office of Legislative Services was nice enough to provide me the most recent copy of the contract between the Colorado General Assembly and LexisNexis for publishing rights.  For everything that Colorado gives up, it should get something like LexisNexis’ first born (that is a joke!  LexisNexis is a company and can’t give birth, at least in the biological sense).

You can read and download the entire contract at the bottom of this post.

Background.  When I filed my first Open Records request with the Colorado Office of Legislative Legal Services, Director Dan Cartin, responded to my request by stating that there are no sales records on hand.  He further stated, “sales through the publisher [LexisNexis] do not generate any revenue for the State of Colorado.”   Fair enough, Director Cartin.  I could not find a single place in the contract where Colorado received revenue from LexisNexis.  Perhaps my request was too narrow because the state of Colorado does receive many in-kind benefits from LexisNexis that are HUGE discounts off the sticker price.

Colorado Receives Free:

  • 6 full LexisNexis subscriptions. Contract section VI. F.
  • 100 free Ebooks. Contract section VI. G; See also Contract section VIII. D.
  • 600 subscriptions to CD-ROM or DVDs, updated quarterly.  Contract Section VIII. C. 1.
    • The contents of what is on a CD-ROM appears to be stated in Contract Section  VI. D.  The disk should contain: “Statutes, Session Laws, Colorado Advance Legislative Service, Colorado Opinions of the Attorney General, Colorado court rules, and Colorado judicial decisions.”   Contract Section  VI. D.
  • Website hosted by LexisNexis where the public can enter into a contract to read the Colorado Revised Statutes online (it is not free if you give up legal rights to enter a contract, as I explained previously). Contract Section VI. E.
  • A list upon demand of contact information for all customers who purchase materials published by LexisNexis, through LexisNexis, with materials supplied by the Colorado General Assembly.  Contract Section VIII. F. (I will discuss this more later).

Colorado Receives Reduced Price:

  • 1,200 sets of Session Laws at $30,282 annually. Contract section VIII. A. 1.
    • Additional copies of Session Laws may be purchased for $25.25.   Contract section VIII. A. 1.
  • 3,150 sets of Statutes for $128,750.  Contract section VII. B. 1.
    • Additional sets of Statutes may be purchased for $36.00.   Contract section VIII. B. 1.
  • Additional Ebooks for the Committee are 50% off the cover price. Contract section VIII. D.
  • Additional CD-ROMs may be purchased by the Committee for $475 a piece. Contract Section VIII. C. 1.

 

Market Rate of Benefits Provided

 

If Colorado paid sticker price for everything on the list above, let’s see what it could come out to.

  • 6 full LexisNexis subscriptions at unknown government price.
  • 100 Ebooks  x $298 per copy = $29,800
    • Unknown quantity of additional Ebooks that may be purchased for $149 dollars.
  • 600 CD-ROMs/DVDs x $950 = $570,000.
    • Unknown quantity of additional CD-ROMs/DVDs that may be purchased for $475.
  • Website hosting, updates and maintenance — estimated value $750.
  • A list of contact contact information for all sales – unknown.
  • 1,200 Session Laws are purchased at $39.63.  LexisNexis sells them for $30.30.  For a loss of $11,196 of what they would have paid if they were a consumer.
    • However, an unknown number of additional copies may be purchased for a subsidity of $5 more than the consumer pays.
  • 3,150 sets of Statutes are purchased at $40.87 a piece. This is a markup of $257.13 per copy.  That is a savings of $809,959.50 if the state paid the consumer price.
    • An unknown quantity of additional sets may be purchased for $36.00 a piece.

From the numbers that are ascertainable Colorado is receiving a benefits of at least $1.4 million dollars by choosing LexisNexis.  That number is a very conservative estimate because it does not take into account many of the unknowns which may increase the benefits by much more.

To be fair the benefits are so high because the Colorado General Assembly allows LexisNexis to gouge the consumer when selling it’s “copyright work product.”

 

Consistency Issues

One thing that really stood out to me, and I couldn’t quite understand was the price difference between the Session Laws and the Colorado Revised Statutes.  To be clear the Colorado Revised Statutes are the official state laws of Colorado, compiled, codified and organized. The Session Laws are the collections of laws enacted during a single legislature at the end of a session, often in a bound volume.  Session laws are still laws, but they are not yet codified and organized to fit in with the rest of the laws.

The contract between the Colorado General Assembly and LexisNexis deals with both Session Laws and the Colorado Revised Statutes.

“Pursuant to the provisions of section 24-70-225, C.R.S., LexisNexis shall sell the Session Laws and Red Book to the public at cost price per copy purchased for use by the State plus twenty percent and delivery charges.”  Contract section VII. A. 3.

The cited provision out of the Colorado revised statutes reads as follows:

Copies of the session laws of Colorado shall be sold by the publisher thereof at the cost price per copy purchased for use of the state plus twenty percent and delivery charges.

— Colo. Rev. Stat. § 24-70-225

As you can tell from my screenshot below, LexisNexis sells Session Laws for $30 to the consumer.  That is within the realm of what I would call reasonable for a hardbound copy.   Part of what keeps that price reasonable is the state statute effectively creating a price cap.

LexisNexis Colorado Session Laws sales

LexisNexis Colorado Session Laws sales

No state statute creates a price cap for the sale of the Colorado Revised Statutes to the consumer.

“LexisNexis may set the public price for the Statutes.  LexisNexis estimates the public sale price per set will initially be $297.00 plus delivery charges.”   Contract section VII. B. 3.

Additionally, the provision on Ebooks states:

“LexisNexis may set the public sale price for the ebooks.” Contract section VII. D. 2.

Whoooaaaa there!  So state law creates a price cap for uncodified statutes.  However, if you want all the statutes and them in some logical organizational scheme, you are at the mercy of the publisher’s pricing.   Here the publisher’s pricing for the Colorado Revised Statutes is nearly 10x more than the price for the Session Laws. How does that serve the public’s interest?  Furthermore, how could someone think about capping the Session Laws and not the state Statutes?

To make matters worse, LexisNexis does not even codify the statutes, that is done by a legislative employee — the Revisor who works in the Colorado Office of Legislative Legal Services.  The Revisor’s duties are defined in a state statute.

The revisor shall compile, edit, arrange, and prepare for publication… all laws of the state of Colorado of a general and permanent nature, together with a complete index thereto and comparative tables of such statutes with prior compilations. The statutory laws shall be arranged into appropriate and convenient volumes, titles, chapters, articles, and sections, so collated and in such form as the committee directs. At the end of each section, reference shall be made to the statutory history of such section. Annotations of decisions of the supreme court of the United States, the supreme court of the state of Colorado, and such other state and federal courts as are appropriate, construing, applying, or interpreting each section, or relating to the subject matter thereof, and such other matter as the committee deems advisable or advantageous shall also be prepared for publication with such statutory laws.

— Colo. Rev. Stat. § 2-3-702.

If the Revisor does all the work compiling, editing, arranging and gives the finished product to LexisNexis, why is LexisNexis getting paid an extra $250 bucks a book?  Both the Session Laws and the Colorado Revised Statutes are brought to LexisNexis in final form.  What is the deal LexisNexis’ price on the Colorado Revised Statutes?

Why does the Colorado General Assembly allow citizens to be gouged at approximately a 10x markup to purchase their own copy of the state statutes.  I think this is one more reason in my case that the Colorado Legislature is violating procedural due process by restricting notice of state statutes.

 

LexisNexis sale of Colorado Revised Statutes Hardbound
LexisNexis sale of Colorado Revised Statutes Hardbound

 State Created Invasion of Privacy?

“Subscription List.  At any time during the term of the Contract upon demand of the Committee and without fee, LexisNexis shall furnish the Committee with a complete list of those persons and entities that subscribe to the sales of Session Laws and Red Books, CD-ROMs, (or DVDs), or Statutes (in book and ebook formats).  LexisNexis has notified the State that during the term of this Contract, the list is confidential commercial data that is not available as a public record in accordance with section 24-72-204(3)(a)(IV), C.R.S.  The State agrees to keep this list confidential during the term of this Contract, unless otherwise required by law.  Upon termination of this Contract, the Committee may use such list whatever manner it deems appropriate, including making such list available to any subsequent contractors.” Contract section VIII. F.

I am going on the record right now, that I think this section is perhaps a violation of privacy.  This provision allows Colorado to market the personal information of the names and contact information after the contract with LexisNexis expires.  To the next publisher, Colorado could for a price, charge of maybe $10 (as a completely random number), for contact information of anyone who purchased the state statutes through LexisNexis.  This could be a pretty nice windfall for the Colorado Government at the citizen’s expense.

LexisNexis appears to be open about it in their Privacy Statement on their website.

Agents, Representatives, Sponsors, Societies and Business Partners. Your personal information may be accessible to our agents, representatives, sponsors and entities for which we are acting as an agent, licensee, joint venturer or publisher.

— LexisNexis Privacy Policy, Section 4.

Maybe the citizen’s contact information who purchased state law is considered a trade secret?  The contract says it is off-limit to Open Records requests.  Apparently, this is some super secret information that only LexisNexis and the Colorado Government can know about until the contract expires.  Then Colorado can distribute it or even sell it freely.

The word privacy is not even mentioned in the Colorado Constitution until the Medical Marijuana Amendment. It is not an expressed individual right in Colorado.  After a preliminary search today, I could not find any state laws guaranteeing privacy from this sort of privacy intrusion.

Conclusion

This contract is messed up in all sorts of ways.  It appears no one was looking out for the people of Colorado’s Best interest.  However, if anyone in the Colorado Legislature or works for the Colorado Legislature would dispute my interpretations made here, or anywhere else on my blog please contact me (my email address is on my About page).  I will be happy to post your full rebuttal unedited.