DA investigation shines light on Basalt public records retention
August 3, 2016
While the Eagle County District Attorney determined Friday no criminal charges were warranted against Basalt officials for erasing text messages regarding government business, the investigation unearthed some possible flaws in officials' retention of public records.
Town Manager Mike Scanlon told Fifth Judicial District Attorney Bruce Brown and his investigator, Jacob Scott, that he thought it was improper that Mayor Jacque Whitsitt and Town Clerk Pam Schilling erased the text exchanges between them from March 15 to April 12. The town doesn't have a formal policy regarding the retention of texts, but Town Attorney Tom Smith has discussed with employees the importance of retaining all public records, Scanlon said.
Scanlon added that the town doesn't get a lot of requests through the Colorado Open Records Act, so its policies and procedures might be "antiquated."
Scanlon was interviewed July 1, as were Whitsitt and Schilling.
Under questioning, Scanlon noted that Whitsitt had instructed town employees at least three years ago to send emails to her at her private address rather than a town government email address.
"Mr. Scanlon said originally Ms. Whitsitt believed that if she is sending messages regarding town business from her personal email that the records were not subject to CORA," said Scott's summary of the interview. "Mr. Scanlon said the Town Attorney told her that isn't the case and town business conducted on any device from any email account is subject to CORA."
Recommended Stories For You
The Aspen Times obtained summaries of the DA's interviews with Scanlon, Schilling and Whitsitt through an open records request to the DA's Office.
Scanlon said Whitsitt experienced problems setting up her work email account at a basalt.net address three years ago. He tried but failed to help her with a technical issue.
"Mr. Scanlon added that he feels like Ms. Whitsitt is not making more of an effort to resolve her official Basalt email problems because she wants to receive emails at her personal account so she can have control over what emails get released when there is a CORA request made," the summary of the interview said.
Trying to boost accessibility
When asked about his comments by The Aspen Times, Scanlon said he wasn't trying to suggest Whitsitt was deliberately withholding emails that were subject to the open records act. She wants more control to protect her privacy, he said.
"I think she does it thinking she doesn't want her personal email shared," Scanlon said.
Whitsitt said the impetus to providing her personal email address to town employees and urging them to provide it to the public was to be more accessible.
She said she wasn't able to solve technical issues with setting up her basalt.net account, so she was afraid she would appear unresponsive if emails were being sent there since she couldn't retrieve them.
Whitsitt said she hired an outside Internet Technologies consultant employed by the town Tuesday to help get the town government email address established and accessible from her phone and laptop.
Whitsitt said she "always" has saved emails regarding town business on her personal email account. Other council members also use personal accounts for town business.
"I believe I can say on behalf of myself and the council that our methods and means are transparent and always open to public inspection," she said.
Basalt resident Mary Kenyon has ongoing concerns about the town government's retention of public records. She filed the open records request seeking the texts between Whitsitt and Schilling. They were erased and the substance couldn't be retrieved through Verizon Wireless. The cell service provider could only produce a log that showed Whitsitt and Schilling exchanged 120 texts over the four-week period targeted by Kenyon. Whitsitt and Schilling both testified that the texts were over election procedural matters. Whitsitt won a bitter contest for Basalt mayor over Rick Stevens in the April 5 municipal election.
When the town couldn't produce the texts, Kenyon filed the complaint that spurred Brown's investigation. He concluded that state statute was "unclear" on retention of texts.
Brown avoids fray
Brown declined Tuesday, as he did Friday, to comment on whether or not Basalt's public retention process is flawed. He sent out a statement Friday saying he concluded criminal charges were not warranted against Whitsitt and Schilling.
Kenyon said she feels Basalt needs to correct some of its procedures to ensure honest, truthful and transparent government. A better process is needed to track and retrieve emails and texts sought through open records requests. The law gives three days to provide the records, she said.
"My feeling is Basalt has some work to do," Kenyon said.
Smith distributed a "white paper" to Basalt officials on Nov. 4, 2014, that outlined how Colorado case law has established that emails and texts that pertain to government business are subject to open records, regardless of whether they are on a personal or government device. Scanlon said he doesn't believe the three council members elected after Nov. 4, 2014, have been briefed on open records requirements. Materials from Colorado Municipal League could help, he said.
"We need to make sure we keep it easy and top of mind. We need to get better at it," Scanlon said.
Smith said he has drafted a proposed policy on retention of text messages to be added to an existing public records retention policy that is based on state law. It will be reviewed at the staff level then go to the council at some point, "but other priorities take precedence at this time," he said.