Chapter 14 - § 14.4 • OPEN RECORDS LAWS

• Jurisdiction: Colorado

§ 14.4 • OPEN RECORDS LAWS

§ 14.4.1—Colorado's Open Records Laws

The Colorado Open Records Act (CORA), C.R.S. §§ 24-72-204, et seq., and the related Colorado Criminal Justice Records Act (CCJRA), C.R.S. §§ 24-72-301, et seq., guarantee access to public governmental records in or out of the litigation context. The right of access created by these statutes is tempered by a concern for the privacy interests of both individual employees and governmental agencies.

Practice Pointer
The open records laws provide a powerful mechanism for obtaining relevant information regarding the viability of legal claims and defenses prior to the initiation of litigation. Under these statutes, potential litigants have an opportunity for "free discovery" prior to the filing of a complaint. For example, if a potential plaintiff is a current or former governmental employee, the open records laws will permit that individual to obtain his or her personnel file, all documents pertaining to adverse actions taken against that individual, documents regarding internal discrimination investigations that the potential plaintiff may have raised, and other documents relevant to the decision regarding whether to initiate a claim. Additionally, investigative files from governmental agencies, including files regarding discrimination complaints filed with the Colorado Civil Rights Commission or the Equal Employment Opportunity Commission and other whistleblowing-type complaints filed with governmental agencies can be obtained through the Open Records law. This opportunity for free discovery is under-used given its significant potential to develop the evidence necessary to prove a claim or defense before trial, or to determine whether a lawsuit should be initiated in the first place.

§ 14.4.2—The Colorado Open Records Act

The Colorado Open Records Act (CORA) creates an absolute and mandatory right to inspect public records except for records specifically exempted, or unless that inspection is contrary to state or federal law, prohibited by the rules of the supreme court or any court, or would be contrary to the requirements of any joint rule of the Senate or House of Representatives pertaining to lobbying practices. C.R.S. § 24-72-204(1). CORA "recognize[s] the compelling public interest in access to information." Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1156 (Colo. App. 1998). In light of that "compelling public interest," it is well settled that CORA establishes "a strong presumption in favor of public disclosure." Id. See also C.R.S. § 24-72-301(2); Bodelson v. Denver Publ'g Co., 5 P.3d 373, 377 (Colo. App. 2000). As such, the party seeking access to public records bears no burden to justify the request for the information sought. See Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996) ("There is no requirement that the party seeking access must demonstrate a special interest in the records requested."); Denver Publ'g Co. v. Dreyfus, 520 P.2d 104, 106 (Colo. 1974) (legislature's declaration of purpose for the Act "clearly eliminates any requirement that a person seeking access to public records show a special interest in those records"); Denver Publ'g Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990) (requester bears no burden "to gain access to public records"); Jefferson Cty. Educ. Ass'n v. Jefferson Cty. Sch. Dist. R-1, 378 P.3d 835 (Colo. App. 2016). Exemptions are to be narrowly construed. Tollefson, 961 P.2d at 1154 (emphasis added).

Under CORA, "'[p]ublic records' means and includes all writings made, maintained, or kept by the state, any agency, institution, a non-profit corporation incorporated pursuant to § 23-5-121(2), C.R.S., or political subdivision of the state, or that are described in § 29-1-902, C.R.S., and held by any local-government-financed entity for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds." C.R.S. § 24-72-202(6)(a)(I). Criminal justice records and certain types of privileged materials are exempt from this definition. C.R.S. § 24-72-202(6)(b).

Not all records created by government officials in the context of their job responsibilities are considered public records under CORA. In Denver Publ'g Co. v. Board of County Commissioners, 121 P.3d 190 (Colo. 2005), the Colorado Supreme Court determined that e-mails between two government employees sent and received during working hours on government-owned computers and that contained sexual and arguably pornographic statements were entirely personal in nature and thus were not "made, maintained, or kept for use in exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds." Id. at 191-92. As such, according to the court, such records were not "public records" as defined by CORA. Id. at 192.

CORA contains a series of exemptions to its disclosure obligations. Privacy interests are at the core of most exemptions. Specifically, the custodian of records may deny the right of inspection for certain categories of records "on the ground that disclosure to the applicant would be contrary to the public interest." C.R.S. § 24-72-204(2)(a). Records for which the...