Proponents outline Colorado constitutional "right to know" amendment in review hearing

Julia Jackson of Legislative Counsel Staff opened a review-and-comment hearing on initiative number 261 and outlined the statutory purpose of the session: to clarify proponents’ intent and record staff comments for the public.

"The purpose of the statutory requirement...is to provide comments and questions intended to aid the designated representatives and the proponents," Jackson said, introducing the session and the memorandum of comments staff had submitted.

Rebecca Vayetti of the Office of Legislative Legal Services summarized what staff viewed as the measure’s core aims: to "establish a fundamental constitutional right for all persons to know the affairs of all levels of state and local government," to apply that right broadly to "all public affairs of government," to require that any asserted exemption be shown by "clear and convincing evidence," to "impose a civil penalty of at least $1,000 on any public official...for each instance in which they knowingly violate the provisions of the proposed initiative except for ministerial acts," and to preempt conflicting ordinances, rules, regulations, charters, or statutes.

Shane Madsen, counsel for the proponents, repeatedly told staff the campaign’s intent is to create a new fundamental right and to treat subsections 2 through 6 as implementing provisions. "The answer is no," Madsen said when asked whether the initiative’s ballot findings were intended to create legal liability, adding, "We don't see that any declaratory language ever creates potential liability when it's not intended to become part of the constitution."

Legislative staff ran through a set of substantive questions. Staff asked whether the measure meets the Colorado Constitution’s single-subject requirement; the proponents said the single subject is the creation of a fundamental right to know government affairs. Staff also queried placing the new provision in Article II (the Bill of Rights) and whether that placement would require balancing the new right against other constitutional provisions; proponents said the provision would be given due regard along with other constitutional text.

A recurring concern from staff centered on definitions and practical application. The text under review contains no explicit definitions for terms such as "affairs of government," "public body," "public record," "public proceeding," or "ministerial acts." Proponents said they view those terms as well-established in law but agreed to consider drafting clarifications. On balancing tests and exemption standards, proponents said courts would apply case-by-case review and that the measure’s clear-and-convincing evidentiary bar is intended to narrow exemptions.

Staff pressed how the measure would interact with existing statutory frameworks, including the Colorado Open Records Act and the Colorado Open Meetings Law, and whether common exemptions (for ongoing criminal investigations, survivor addresses, trade secrets, or attorney-client communications) would survive. Madsen said the proposal is intended to be "the lodestar" for interpreting existing statutes and that, where inconsistent, courts would decide whether statutory exemptions meet the initiative’s standard.

Staff asked whether executive sessions would be effectively abolished unless they met the initiative’s highly compelling-interest standard; proponents said there is no intent to abolish executive sessions but that their invocation would be measured against the new standard. On fees and timing, staff queried subsection 5, which authorizes governments to enact facilitating legislation and measures to reduce access costs but also states that no state or local government may limit or restrict the initiative’s provisions. Proponents said reasonable fees or timelines could be judged against the right and that clarifying language in drafting could help.

On sanctions and enforcement, staff noted the measure includes a minimum $1,000 civil penalty for each "knowing" violation and asked who would assess and collect penalties and whether frontline employees might face personal liability for good-faith denials. Madsen said ministerial acts would follow the well-known definition and are not intended to include frontline staff. He described enforcement as likely following processes used for prior initiative-based enforcement (for example, campaign finance or ethics measures) or being addressed by future legislation or courts; the measure itself does not set out an administrative enforcement mechanism.

The hearing concluded after staff indicated the technical comments need not be read into the record and proponents said they would defer drafting changes to their counsel. The review-and-comment hearing closed with no formal votes or final actions recorded.