Report recommends CO ban public officials’ use of encrypted, disappearing messaging apps for official business

CFOIC report comes after state lawmakers sue Colorado House, claiming violation of state's open meeting laws
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Posted at 7:42 AM, Aug 09, 2023
and last updated 2023-08-09 11:25:11-04

DENVER — A new report published by the Colorado Freedom of Information Coalition (CFOIC) recommends the state ban public officials from using any encrypted or disappearing messaging apps when discussing official business. The findings come after state lawmakers sued the Colorado House of Representatives, alleging there were "pervasive violations" of the Colorado open meetings law during the 2023 legislative session.

The plaintiffs in the lawsuit are Rep. Elisabeth Epps, D- District 6, and Rep. Bob Marshall, D- District 43. Marshall met with Denver7 on Monday and said the two are currently negotiating a solution for the lawsuit.

“Hopefully, we can just resolve it quietly out of court and move forward from there," Rep. Marshall said. “Normally, we would file the preliminary injunction alongside the complaint. But we made the conscious choice not to do it in the hopes that we could resolve it without it.”

MORE: State lawmakers sue Colorado House of Representatives, claim violation of state's open meeting laws

The lawsuit accuses both parties of violating the law by holding secret meetings throughout the 2023 session to discuss pending legislation without notifying the public. The suit also claims legislators use an app called Signal, which allows them to communicate without any record of their messages.

“It's encrypted, and you can set it to do automatic disappearing, so it'll automatically destroy the messages after a certain time frame," Marshall said, explaining the app. “The concern we had was, there were many times there were a quorum, you know, more than half of certain legislative bodies that were on it, and they sometimes would be discussing policy issues. And that was kind of a violation of the open meetings law.”

Marshall said he has Signal downloaded on his phone, and that it is also used for personal discussions and "all sorts of stuff." However, he said technology has overtaken the Colorado open meetings law.

The CFOIC report listed a few states that have legally addressed this issue in some way. Those include, as identified in the report:

  • "Michigan House Bill 4778 directs state departments and agencies not to use any app or technology that prevents them from maintaining or preserving electronic public records as required by law.
  • In Sansone v. Governor of Missouri, the Missouri Court of Appeals for the Western District upheld that the governor’s use of disappearing messaging apps was not a violation of the sunshine laws because no messages were retained, so there was no public record to be produced.
  • Texas Senate Bill 944, enacted in 2019, requires government officials to preserve text messages sent from or received on their personal devices that concern public or official business. However, the law does not directly address the use of disappearing or encrypted messaging apps.
  • Kansas Executive Order 18–06 requires governor’s office employees to conduct official business on their official state email accounts; accordingly, any use of a disappearing or encrypted messaging app for official business would be in violation of the executive order."

The report recommends Colorado expand upon the law in Michigan, "making it a violation of state law for public officials to use any encrypted or disappearing messaging apps for official business."
“Is a blanket prohibition appropriate? I don't know," Marshall said. "I can see value to having it. So again, that's a discussion that needs to be taken up.”

The goal of the lawsuit, according to Marshall, is to catalyze some kind of change to address the claims.

Report recommends CO ban public officials’ use of encrypted, disappearing messaging apps for official business

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