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Thousands of policy emails sought by State Senator were deleted

Posted: 2:00 PM, Feb 24, 2019
Updated: 2019-02-24 18:50:42-05

DENVER – Members of the Committee on Legal Services are looking into why thousands of emails requested by a State Senator were prematurely deleted. Senator John Cooke, (R) Greeley, sent a Colorado Open Records Act request on August 29 for emails from two state staffers who worked to accomplish Governor John Hickenlooper’s executive order establishing new Low Emission Vehicle standards.

“On September 4th, I received a letter back from CDPHE saying that the person that I wanted, Mike Silverstein, his communications and his electronic files; he no longer worked there, he resigned, and they deleted all of his emails and all of his electronic files,” Cooke said. “I was shocked, to be honest with you. I went from shocked to pretty upset.”

State sunshine laws consider emails to be public records with few exceptions. Additionally, state agencies are required to keep public records for a minimum of five years.

“Each individual agency can extend that if they want and CDPHE extended it another five,” Cooke explained. “So, they’re retention schedule is 10 years.”

A spokesperson for CDPHE confirmed that Michael Silverstein was employed at CDPHE for 23 years and ended his employment on August 24. He worked most recently as the Commission Administrative and Technical Secretary to the Air Quality Control Commission.

“Within 24-48 hours, they deleted all of his electronic files,” Cooke said. “Basically, it was thumbing their nose at the legislature.”

Ann Hause, Office of Legal and Regulatory Compliance Director at the Colorado Department of Public Health and Environment told us in an emailed statement, “we responded to the request for information appropriately. Transparency always has been a priority at this department, and that has not changed.”

Sen. Cooke feels differently. He asked the Committee on Legal Services to provide him with a lawyer to sue CDPHE over the deleted records.

“Senator (Pete) Lee agreed with me and he said, ‘before we do that, let’s send them a letter from the entire committee,'” Cook explained.

Senator Lee is the chairman of the Committee on Legal Services. That letter was sent January 3 and stated that the committee was considering issuing subpoenas in order to fulfill the request.

It worked. Senator Cooke said IT workers were able to recover around 3,000 of the deleted messages by searching state servers for copies of emails kept by people who received them from Silverstein. Cooke and his staff are still going through the documents looking for any gaps in the records.

To understand the controversy behind the emissions mandate, it helps to understand what’s in it.  Air Quality Control Commission Regulation Number 20 was adopted in November and sets stricter limits for the levels of pollutants that new cars can emit beginning in the year 2022. Opponents say it will raise the prices for consumers.

“It raises the prices on the cars that Coloradoans typically want and need,” said Tim Jackson, President and CEO of the Colorado Automobile Dealers Association.

His organization sued the CDPHE last month claiming that the Air Quality Control Commission didn’t follow it’s own rules last fall when adopting the LEV mandate. In January, Governor Polis went one step further by signing an executive order that requires CDPHE to develop a Zero Emission Vehicle program.

Under a ZEV mandate, automakers who want to sell cars in Colorado must offer electric vehicles or buy credits from their competitors who do. Jackson said the only company selling the credits today is Tesla.

“It’s roughly a billion dollars worth of credits sold by Tesla right now to other automakers to remain compliant in those LEV and ZEV states,” Jackson said.

Senator Cooke pointed out that the redistribution scheme could have been debated in public if the governors had simply trusted the legislature to do its job.

“I think this is the problem why people have little trust in their government because they do things behind people’s backs,” Cooke said. “They’re so bureaucratic and if you try to get information from state agencies, they can just ignore you and again, it just goes back to what are they hiding.”

Cooke said he is working with this colleagues on the Committee for Legal Services to draft bipartisan legislation that he hopes to introduce this session. It would add accountability features to the Colorado Open Records Act as a means of preventing records from being deleted in the future.