Medical marijuana fight: Dept. of Revenue's deletion of e-mails improper, activist charges

The war between activist Corey Donahue and the Department of Revenue over public records has flared up once again.

This time, Donahue accuses DOR supervisor Matt Cook with improperly deleting e-mails shortly before leaving his post -- a charge denied by the Medical Marijuana Enforcement Division.

As William Breathes has reported, Donahue, who calls his marijuana advocacy organization Crazy For Justice, made thirty different open records requests to the Department of Revenue, which oversees the MMED. The requests asked the department for documents ranging from budget breakdowns to internal e-mails. When this material wasn't provided to him in what he viewed as a timely manner -- due to his failure to leave an address where he could be reached, the department maintains -- he filed a complaint with the Denver District Attorney's office. Because this document featured contact info, a MMED rep was able to get in touch with Donahue and inform him that some of the documents had been assembled at the department's offices. When he arrived to pick them up, he was told he'd have to either pay for them or view them there, but he snagged them anyhow, prompting a warrant in his name from that same DA's office, for theft and disturbing the peace.

In an interview with Breathes, Donahue said he did nothing wrong and hoped to drag out the warrant situation "so people can see what's going on." And he's taken a similar tack regarding an e-mail exchange with MMED spokeswoman Julie Postlethwait in response to a question about electronic communication involving Cook, who served as the DOR's senior director of the enforcement line of business; in that capacity, he oversaw the regulation-writing process for medical marijuana prior to MMED's creation.

After Donahue inquired about Cook's e-mails earlier this month, Postlethwait wrote, "There wasn't much from Matt as he had already cleaned out most of his e-mail because he was retiring shortly after your request was originally received." In June, you'll recall, Cook announced that he would be leaving the Department of Revenue with an eye toward becoming a consultant on medical marijuana matters.

Donahue interpreted this note as meaning that Cook had deleted the e-mails because of his records request, but Postlethwait denies it. "The e-mails were deleted prior to the request coming in," she writes. "When we received the request on June 13, I contacted Mr. Cook, and he had already deleted most of his e-mail files, as he was retiring at the end of the month." She adds that "we provided Mr. Donahue with whatever unprotected records we had available when his request came in."

But was this deletion proper? After all, the Colorado Open Records Act policy page on the Colorado Department of Public Health and Environment website states:

Under Colorado law, 18-8-114 C.R.S (1989), it is a Class 1 misdemeanor for a person to knowingly make a false entry or alter any public record or to destroy, mutilate, conceal, remove, or impair the availability of any public record. "Public record" is defined as all official books, papers, or records created, received, or used by or in any governmental office or agency.

However, MMED's Postlethwait disputes the contention that Cook's e-mails qualified as public records under this definition. She points to what she describes via e-mail as "the Department of Revenue Records Management Policy and our Departmental Custodian of Records document." The pertinent passage:

"Records" means all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the value of the official governmental data contained therein.

However, this section ends with the line, "As used in this part 1, the following are excluded from the definition of records." And among the exclusions are "Electronic mail messages, regardless of whether such messages are produced or stored using state-owned equipment or software, unless the recipient has previously segregated and stored such messages as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the value of the official governmental data contained therein."

Permanently storing such e-mails isn't possible at MMED, Postlethwait maintains. In her words, "The amount of e-mail we are able to retain is limited. Most delete unnecessary e-mail every month in order not to run afoul of the size limit."

Don't expect this explanation to satisfy Donahue -- or to end his fishing expedition for incriminating behavior on the part of the Revenue department and the Medical Marijuana Enforcement Division.

More from our Marijuana archive: "HempCon 2011: What do fake orgasms have to do with medical marijuana?"

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