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FYI 3: Confidentiality and the IEC

 

There are several laws which govern what the Commission must keep confidential and what is available to the public. 

 

Open Records Act

The IEC was created by voters to be both a proactive advisory commission as well as a reactive quasi-judicial authority to hear complaints of past activities that may be violations of the law. This dual responsibility creates some unique challenges for the Commission.

In general, the Colorado Open Records Act, (“CORA”) which may be found at C.R.S. §24-72-201 et seq., requires the Commission to make available all public records in its custody.  Article XXIX, however, provides that certain information must remain confidential.  For example, when a complaint is filed with the Commission, it remains confidential at least until the Commission has made a determination of whether the complaint is “frivolous.”   That term is defined in the IEC’s Rules as, “without a rational argument for the IEC’s involvement based on the facts or law.”  If a complaint is dismissed as frivolous, it remains confidential. If the IEC decides that the complaint is not frivolous, but dismisses it for another reason, such as passage of more than 12 months since the alleged unethical activity, or the Commission decides that the complaint warrants a hearing, then it becomes a public record, and the IEC's file is available to any member of the public for review.

Commission rules do not allow either complaints or requests for advisory opinion or letter ruling to be filed anonymously. All requests for Letter Rulings or  Advisory Opinions as well as complaints must be signed by the requestor.

The name of a requestor of an Advisory Opinion will generally remain confidential in the body of the opinion, unless confidentiality is waived.  If there is a CORA request, however, the Commission must disclose both the name of the requestor and the actual request.  If the request is in the form of a Letter Ruling, then the IEC may redact the name of the requestor and other identifying information. (See, FYIs 6 and 7).

Open Meetings

Meetings of the IEC occur whenever two or more commissioners discuss IEC business.  In accordance with Colorado Sunshine Law and the Colorado Administrative Procedures Act such meetings are posted on the website a reasonable period in advance and the meeting must stay within a published agenda.  Meetings are open to the public.  Meetings are not recorded, but Minutes of all of the IEC’s meetings are posted on this website.

As part of a meeting the IEC may meet with legal counsel in a closed Executive Session to discuss active or pending litigation, or to obtain legal advice on a particular matter.  The Commission also enters into Executive Session to discuss a complaint which has not yet been determined to be frivolous or non-frivolous.  An Executive Session is not open to the public. Even though the executive session is not open to the public, the IEC is still required to put general discussion topics on the public agenda and record the Commissioners’ discussions.