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City officials claim using private email avoids 'injury to the public interest'

Editor's note: This story was updated April 8 to correct the name of the Colorado Freedom of Information Coalition.

Mayor Steve Bach's executive team uses private email for city business, and gaining access to those messages can be tricky.

Using private email for government business is at the forefront of the fuss over former Secretary of State Hillary Clinton's use of personal email and a private server for public business while in office. In Colorado, use of private email by government officials also has caused a stir among agencies who fight for transparency.

So although records released by the city don't show local officials relying solely on personal email for city business, transparency advocates say there's still cause for concern.

"If a public official uses a private account, he or she in practical terms is the one controlling access, even if the law says those emails are public records," says Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.

Varying retention policies and archiving capabilities, along with the question of who has custodial control, make retrieval of such emails "even more difficult, if not impossible," he adds. "It shouldn't be so easy for them to just disappear."

For example, the city's own retention policy requires correspondence, including email, that contains "long-term administrative, policy, legal, fiscal, historical or research value" be kept permanently. However, city spokeswoman Julie Smith says the city has no policy that prohibits use of personal email for city business. The city also allows officials whose emails are sought through Colorado Open Records Act requests to delete them at will.

When the Independent sought emails from private accounts in mid-March under CORA for specific dates, the city asserted that many messages were "so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government" and that "public disclosure ... may cause substantial injury to the public interest."

Although the city released some emails, none came from the mayor, because he had "no responsive records" to the Indy's request, according to Smith.

Those who used emails from personal addresses included Chief of Staff Steve Cox, Human Resources director Mike Sullivan, Police Chief Pete Carey and former Chief of Staff Laura Neumann. But Smith says via email they used personal email "very rarely, if at all" for city business and did so simply "for the ease of being able to review [city emails] after hours."

Among emails Cox sent to his personal email from his city address was a Feb. 23 message from City Clerk Sarah Johnson. It contained three campaign finance complaints filed on Feb. 19 by anti-tax activist Douglas Bruce: one against mayoral candidate John Suthers, and two against committees trying to recall City Councilor Helen Collins. (A few hours after sending Cox the complaints, Johnson dismissed them as unfounded.)

When the Indy asked Smith and Cox via email why he sent the complaints to his personal email, Cox emailed back from his city account two times, 20 minutes apart, saying, "Please stop using my personal email for city business," and "I don't appreciate that you would knowingly send this kind of email to my personal account, please do not use it again," which he copied to the city attorney.

Neumann, who served as Bach's chief of staff from February 2012 to March 2014, confirms in an email that she, too, used her personal email for city business. "I sometimes forwarded a particular complex issue from my city e-mail to my personal e-mail so I might work on it from home in the evenings and would respond to the writer from home on my personal computer (often copying my city e-mail)," she says.

But after she left the city in March 2014, she says, none of those emails were retained.

Among the emails provided in response to the Indy's CORA was a message regarding a job interview. On Jan. 14, 2014, Tamra Rank wrote to Neumann's personal email saying she was "a little irritated" about waiting for a call from the city about a job prospect.

About two hours later, Neumann forwarded the message to Sullivan and city staff assistant Julie Lafitte, saying: "oh dear! mike needs to jump on this asap. friend of general [Mike] gould that mayor specifically wanted to see got an opportunity to discuss the position. julie pls shepherd this through to completion today and remind me to respond to her by cob today! if she remains interested, she must be added to the panel this week."

Smith says Rank, a retired Air Force colonel, applied for the deputy chief of staff position but withdrew prior to the interview process. Neumann notes that she granted interviews only to qualified candidates. Rank says in an email she couldn't recall why she used Neumann's personal email account.

Sullivan states in a March 13 affidavit that disclosure of 10 emails dated from Sept. 6, 2013, to Feb. 12, 2015, would have had, if released, "a chilling effect on the predecisional and deliberative process" and, therefore, are protected from disclosure. Such affadavits are required by CORA when certain records are withheld.

But Sullivan did produce 63 pages of emails and attachments he sent from his work email to his personal email. Topics included job descriptions; employee benefits; job applicants; the status of George Culpepper, the City Council employee fired by Bach in January 2014; and a developer's request.

One message pertained to former communications director Cindy Aubrey's pay. It noted she started in July 2011 at an annual salary of $95,000. She received two 5 percent annual raises, which placed her at $100,302, the top of the salary range. He notes that in October 2013, the city's compensation study increased the range.

"As a result she was moved to the new zone minimum of $101,500 retroactive to March 2013 and given the July 20, 2013 increase of .554% for a total salary of $102,062," he writes. The message also noted that Aubrey's new market average was bumped to $127,500, with a maximum of $140,250.

Aubrey took a job with Pikes Peak United Way in January.

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