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

Thumbnail image for corey donahue.jpg
Corey Donahue.
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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7 comments
Robert Chase
Robert Chase

This really is poor Michael.  You apparently have dismissed the information we provided you about the incident, and you have glommed onto Corey's hostility towards MMED as the main story -- doesn't it occur to you that what he is asking is both reasonable and in the public's interest to know?

scandal
scandal

Anybody with computer skills can retrieve those e-mails.They might of erased them but the fingerprint is still there.Not like there going to let somebody do that though.Maybe with a court order.

Corey Donahue
Corey Donahue

Hello Michael,I read your article yesterday with some dismay.  I believe the article favored the misinformation the MMED has been spreading regarding not only this incident but almost every report that has come out of their office.  Please see the first attached document, this is the document I provided with my original request.  As you will see it is clearly marked received by the MMED on June 13th and it clearly has an email address, this one, where I can be reached.  The MMED and  Ms. Posthlewait are lying to you and you are repeating this lie, the facts clearly show they had a way to reach me.  Please change this assertion that they had no way to contact me.  Their lie that they had no way to contact me leads to the second point of misinformation.  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."  The MMED had my contact information the entire time they just used the charges I pressed against them to continue with their lies. Their response came well over a month after my original request, with contact information, was submitted. This also gave them time to convince the Denver DA they did nothing wrong.  When I finally received documents the MMED said that these documents were from the Governor, Attorney General and Robert John Cappchii.  However, if you look at attachment number #2 you will see the request I made to the AG's office for communications between the AG's office and the MMED was denied because the records they have are not subject to disclosure.  Attachment #3 is the response to my CORA request for documents to and from the Governor's office to the MMED and the Governor's office stating they have NO documents responsive to my request. Finally I received no communications between Robert John Cappchii and the MMED. So, they lied when they said they gave me documents from these people in response to my request.  You also site in your article the disparity between the Law and the Department of Revenues policies which conflict.  I am confused by this as we are told we live in a society that is governed by the rule of law. So, I don't see how a policy by a government body can supersede a law, this helps the MMED future propagate their lies and you should look in to why a department policy violates the law.  "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."  Well fishing is more fun with people. So I have an idea, why don't you come along, I could use an experienced jurno like you to help me do some investigative journilism. Or do you honestly believe that Colorado went from having Medical Marijuana enshrined in our Constitution to being the only place in the world which has a specific branch of law enforcement oversee and restrict a persons constitutional right to medical marijuana, without any wrong doing on the governments behalf?  Finally if someone says the world is round, but the government says the world is flat is it proper journalism to say "there is disagreement as to the shape of the earth?" I look forward to your corrections and response.

Corey Donahue

Corey Donahue
Corey Donahue

Well in my defense, I actually what to know what my government is doing to our constitutional rights it would be nice if more people got on board, what we need is some good old fashion investigative journalism. But good on the Westword for being fair and balanced.  I mean there are very respectable people at the MMED and Corey Donahue is just on a fishing expedition as the MMED couldn't possibly have done any thing wrong because the MMED says their departmental policy conflicts with the law, so it's ok for them to violate the law.  Oh, and Michael if you look at the documents I sent over to will you will clearly see that  I provided an email address to the MMED at which they could email me and it was stamped received by the MMED.  As this is the second or third time this lie has been told I would ask that you please quit promulgating the MMED's lies as it's not becoming of the quality journalism you are known for.      

Robert Chase
Robert Chase

The MMED supplied Mr. Donahue with a stack of waste paper, including copies of old press releases from the Governor's office, and misrepresented it as an official response to his open records request -- the only page making any reference to the MMED was a one-page summary of the State budget with a line-item for MMED.  The bureaucratic trash which the MMED produced in response to a lawful request under CORA will serve as evidence that the MMED committed malfeasance -- its employees cannot represent under oath that Corey stole stuff they picked out of the recycle bin!

Quint
Quint

Here's the fishing expedition I would like to see: What is Matt Cook trying to hide? At the motion's hearing for Chris Bartkowicz in federal court last year, Matt Cook successfully fought his subpoena to testify about conversations and agreements he had with the DEA. Cook didn't want to testify under oath, so was able to quash the subpoena on a technicality. Cook has said repeatedly in public that he is working hand-in-hand with the DEA. Wouldn't it be interesting to see exactly what the state of Colorado and the DEA have going for them??? Why is it OK for the MMED to destroy all their records related to conversations with the DEA?

I agree with Corey that WW should investigate this further. There's a bigger story hear that needs to be dug out by a real investigative journalist. I know they're a rare breed, but WW is as close as we've got here. Don't just take the MMED lies and put them off as truth. WW should give us the WHOLE story be investigating this further. Don't you guys have any lawyers that can confirm or deny whether it was a crime for them to destryo the emails?

Corey Donahue
Corey Donahue

24-72-203. Public records open to inspection. (III) (c) In no event can extenuating circumstances apply to a request that relates to a single, specifically identified document. I just need to find an email from Dan Hartman from early 2010 and Matt Cook form early 2010 and if they deny it then they once again violate the CORA and if they give it to me then they are lying.  If you have any please let me know so I can request it from them.  

Also your right it would be nice to have another investigative journalist help me, but I don't mind being Colorado's Bob Woodward, if everyone wants to pretend every thing's ok and they are not being lied to.

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