Chapter 12 - § 12.11 • PROTECTIONS FOR PERSONAL AND FINANCIAL INFORMATION

• Jurisdiction: Colorado

§ 12.11 • PROTECTIONS FOR PERSONAL AND FINANCIAL INFORMATION

Regardless of whether the information is privileged, Colorado offers several protections for personal and financial information.

§ 12.11.1—Protections for Personal Information

Constitutional Protections

Some personal information may be protected under the United States and/or Colorado constitutions. In Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980), individual defendants in a civil action that arose out of alleged police misconduct objected to discovery of their personnel records and investigation reports on the grounds that their production would violate their right to privacy under the due process clause of the Fourteenth Amendment to the U.S. Constitution. In Martinelli, the Colorado Supreme Court set forth a three-pronged balancing test for evaluating what it referred to as the "right to confidentiality":

1) Does the party asserting confidentiality have a legitimate expectation that the materials or information will not be disclosed?
2) Is disclosure nonetheless required to serve a compelling state interest?
3) If so, will the disclosure occur in the least intrusive manner?

612 P.2d at 1091.

First, the person asserting constitutional protection must show that "he or she has 'an actual or subjective expectation that the information . . . not be disclosed' . . . by showing that he or she divulged the information to the state pursuant to an understanding that it would be held in confidence or that the state would disclose the information for stated purposes only." Id. (citations omitted). The person also must show that the materials or information sought to be protected is "highly personal and sensitive" and that "its disclosure would be offensive and objectionable to a reasonable person of ordinary sensibilities." Id. The court then established a hierarchy of interests for personal information in which information relating to intimate relationships received the greatest protection and other information received less protection. Id. at 1092. Information that is not of a highly personal or sensitive nature may not fall within the zone of confidentiality. See, e.g., Denver Policemen 's Protective Ass'n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981) (information in police officers' personnel files relating to their work as police officers was not protected); Flanagan v. Munger, 890 F.2d 1557, 1570-71 (10th Cir. 1989) (reprimands based on off-duty conduct of police officers reflected on their fitness as officers and were not protected); Denver Post Corp. v. University of Colo., 739 P.2d 874, 876, 879 (Colo. App. 1987) (information about payments from the Saudi government to certain University regents, administrators, faculty, and employees was not protected).

Second, even if the claimant has "a legitimate expectation that the personal materials or information in question will not be disclosed through state action, a compelling state interest can override the constitutional right to confidentiality." Martinelli, 612 P.2d at 1092. That is, the state interest in facilitating the ascertainment of truth in connection with legal proceedings must be sufficiently compelling in the case as to override the expectation of confidentiality. Id.

Third, the Martinelli court emphasized that disclosure "must only be made in a manner, consistent with the state interest to be served, which will...