“Columbine” and Colorado’s Records Acts, 0916 COBJ, Vol. 45, No. 9 Pg. 45
| Author | Lindsay Miller, J. |
Lindsay Miller, J.
The Civil Litigator
This article provides an overview of the Colorado Open Records Act (CORA) and explains how disclosure under CORA works. It offers practical considerations for making a CORA request within the litigation context. The article also briefly discusses how criminal justice records are treated and analyzed under the Criminal Justice Records Act for purposes of comparison.
The General Assembly has declared that with limited exceptions it is the “public policy of this state that all public records shall be open for inspection by any person at reasonable times.”1 In furtherance of this policy, the General Assembly enacted the Colorado Open Records Act (CORA), which requires custodians of public records to make available to the public all public records, subject only to certain exceptions.2 In general terms, “CORA provides a two-part framework to ascertain whether a writing is a public record subject to disclosure under CORA: (1) who made, maintained, or kept the requested record, and (2) why he, she, or it did so.”3
The requesting party need not show any special interest in the records sought,4 and Colorado law so values CORA’s intended transparency that, generally speaking, a public official cannot deny a person access to a public record without a specific statute permitting such withholding.5 While there are certain notable exceptions to disclosure (some of which are discussed below), such exceptions are to be narrowly construed.[6] Further, if a custodian seeks to apply an exception, it is the custodian’s burden to prove that such an exception applies.7
A related and equally important records act, the Colorado Criminal Justice Records Act (CCJRA), governs both criminal justice records and records of official actions of criminal justice agencies. As might be expected, due to the content and sensitivity of the information at issue, additional public policy considerations apply to criminal justice records and greater discretion is afforded to custodians of these records.
CORA and CCJRA are valuable transactional tools for civil litigators, particularly for investigatory pre-trial or pre-litigation activities, because the information in public records can save time and resources for both the client and court. For example, the compliance period for CORA records is extremely short compared to those for standard discovery and disclosure.
However, to use these Acts to the fullest extent possible, when seeking records or trying to protect them, litigators must be aware of their client’s rights under CORA and the CCJRA. And the requirements of CORA and the CCJRA may collide and overlap, so practitioners must know how to make these separate records requests. Although the records subject to these Acts and the procedures for requesting them are enumerated by statute, and parties are obligated to comply with disclosure and discovery rules under the Colorado Rules of Civil Procedure, CORA provides a procedure for limiting disclosure, even if the record in question is presumptively subject to disclosure,8 and the CCJRA affords custodians a significant amount of discretion that could easily be abused. Knowledgeable practitioners will be able to recognize when disclosure is appropriate and argue for it.
CORA “Public Records”—What Qualifies?
The fundamental requirement of CORA is the initial determination of what is and what is not a “public record.”9 Under CORA, the term “public records” is defined broadly to include “all writings made, maintained, or kept” by the state or any political subdivision of the state, including state agencies, institutions, and certain nonprofits formed by state-supported institutions of higher education “for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.”10 The term specifically includes the “correspondence” of elected officials, subject to specifically enumerated exceptions, including (1) work product of the official, or (2) correspondence that does not have a “demonstrable connection” to the official’s duties as a public official and does not involve the receipt or expenditure of public funds.11
Emails Must Meet the Definition of a “Public Document”
Email is the predominant method of instantaneous, modern communication. When CORA was originally adopted in the 1960s, email and text messages did not exist. However, with the rapid expansion of this technology and its widespread use by state officials in the 1990s, the General Assembly sought to clarify how and when messages of this nature would be subject to CORA. In 1996, CORA was amended to incorporate email in two important ways: email was included in the definition of “writings” covered by CORA,12 and the General Assembly “added e-mail correspondence sent to and from elected officials as a public record.”[13] The General Assembly further included a third provision in these amendments that affected the factors to be considered when determining whether a “writing” (including emails) is a public record.14 This provision recognized that public officials and employees may use publicly funded resources to send a message, but this does not “separate and alone from other considerations make the message a public record.”15
The considerations associated with email analysis are illustrated by Denver Publishing Co. v. Board of County Commissioners of County of Arapahoe.16 The central question in this case was whether certain sexually explicit and romantic emails sent between Baker, the then-clerk and recorder for Arapahoe County, and Sale, the then-assistant chief deputy clerk of Arapahoe County, constituted “public records” within the meaning of CORA. The case arose out of Sale’s action against Baker for constructive discharge, sexual harassment, misuse of public funds, and other claims. In light of that case, the Arapahoe County Board of Commissioners filed a petition for judicial declaration with respect to a request by the Rocky Mountain News for inspection of the personal emails at issue.17
The Arapahoe County District Court ordered that the emails and corresponding investigative report were to be disclosed. Both Baker and Sale appealed. The Court of Appeals ruled that although the e mails were subject to disclosure under CORA, there was a constitutional privacy exemption that the trial court failed to consider.18 The Rocky Mountain News appealed. On certiorari, the Colorado Supreme Court confirmed that emails are afforded the same considerations as other “writings,” and that only those emails that addressed the performance of public functions or the receipt or expenditure of public funds could be considered “public documents” under CORA.[19] Therefore, the subject explicit emails were not “public records.” No constitutional exemption exists, and the constitutional privacy analysis conducted by the Colorado Court of Appeals was unnecessary.20
Cell Phone Records and Diaries
Other cases regarding the disclosure of public records pertaining to elected officials echo the sentiment of Denver Publishing Co. For example, the Colorado Supreme Court determined that former Governor Bill Ritter’s personal cell phone billing statements were not public records subject to disclosure under CORA because he did not “make, maintain, or keep” the billing statements in his official capacity as governor, even if he received or made calls on the phone during regular business hours.21 Similarly, at issue in Wick Communications Co. v. Montrose County Board of County Commissioners22 was whether a public official’s personal diary, relied on in preparing an official report, was a public record. The Wick Court concluded that the diary was private, and again found that simply because a document is created during one’s tenure as a public official does not render it a public record.23
Judicial Records
Judicial records of the Colorado Supreme Court regulation counsel and Office of Attorney Regulation Counsel are not considered public records because these offices are part of the judicial branch and thus their records are not records of the “state” or “an agency” of the state for purposes of CORA.24
CORA Compliance
Under CORA, public inspection is mandatory unless it would conflict with certain other legal requirements or an exception applies.
Mandatory Disclosure
CORA requires custodians of public records to allow public inspection of their records, except when the inspection (1) would be “contrary to state statute,” (2) would violate federal law or regulations, (3) is prohibited by court order or rule, or (4) would violate state requirements regarding lobbying practices.
Discretionary Disclosure—“Public Interest” Exception
CORA provides an exception to the “mandatory disclosure” rule to restrict access to public records where substantial injury to public interest would result, notwithstanding the fact that such records might otherwise be available for inspection by a party in interest or by the general public.25 To effectuate this exception, record custodians have discretion to withhold a record preliminarily and to seek a court order permitting the restriction of the record.26
The “public interest” exception is best illustrated by Bodelson v. Denver Publishing Co.[27] This case a rose out of the Columbine High School shooting on April 20, 1999. On that tragic day, 12 students and one teacher were victims of a homicide at the high school, perpetrated by two fellow classmates, Eric Harris and Dylan Klebold. Approximately one month after the shooting, the custodians of the victims’ autopsy records, along with...
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