Denver Post Corp. v. Cook

• Court: Colorado Court of Appeals
• Citation: Denver Post Corp. v. Cook, 104 P.3d 293 (Colo. App. 2004)
• Decision Date: 12 August 2004
• Docket Number: 02CA1327
• Parties: The DENVER POST CORPORATION, d/b/a The Denver Post, Intervenor-Appellant, and Wayne Harris, Katherine Harris, Thomas Klebold, and Susan Klebold, Intervenors-Appellees, v. Russ COOK, in his capacity as Sheriff of Jefferson County, and Jefferson County Sheriff's Department, Defendants-Appellees.

104 P.3d 293

The DENVER POST CORPORATION, d/b/a The Denver Post, Intervenor-Appellant, and Wayne Harris, Katherine Harris, Thomas Klebold, and Susan Klebold, Intervenors-Appellees, v. Russ COOK, in his capacity as Sheriff of Jefferson County, and Jefferson County Sheriff's Department, Defendants-Appellees.

No. 02CA1327.

Colorado Court of Appeals, Division III.

August 12, 2004.

Certiorari Granted January 10, 2005.

Faegre & Benson, LLP, Thomas B. Kelley, Steven D. Zansberg, Eileen Kiernan-Johnson, Denver, Colorado, for Intervenor-Appellant.

Montgomery Kolodny Amatuzio, C. Michael Montgomery, Joel A. Kolodny, Steven G. Greenlee, Denver, Colorado, for Intervenors-Appellees Wayne Harris and Katherine Harris.

Patterson, Nuss & Seymour, P.C., Gregg E. Kay, Franklin D. Patterson, Brian C. Proffitt, Englewood, Colorado, for Intervenors-Appellees Thomas Klebold and Susan Klebold.

William A. Tuthill, III, County Attorney, Susan Prose, Assistant County Attorney, Lily W. Oeffler, Assistant County Attorney for Defendants-Appellees.

Ken Salazar, Attorney General, Elizabeth H. McCann, Assistant Attorney General, Alan J. Gilbert, Solicitor General, Denver, Colorado, for Amicus Curiae Attorney General, State of Colorado.

Opinion by Judge ROY.

The Denver Post (the Post) appeals from the district court's order in favor of the Jefferson County Sheriff's Office (JCSO) finding that certain writings and tape recordings seized by law enforcement officers pursuant to search warrants are not "criminal justice records" and, therefore, are not subject to the Colorado Criminal Justice Records Act, § 24-72-301, et seq., C.R.S.2003 (CCJRA). We remand for further proceedings.

The events surrounding the Columbine High School tragedy are well known. On April 20, 1999, Eric Harris and Dylan Klebold entered Columbine High School heavily armed and with homemade explosive devices. They shot and killed twelve students and one teacher, injured numerous others, and ultimately killed themselves.

As relevant to this appeal, the JCSO began an investigation into the attack on that same day. After obtaining search warrants, deputy sheriffs entered and searched the Harris and Klebold (the families) homes. Among the items seized from the homes were videotapes, audio tapes, and written materials prepared by the boys prior to the attack (collectively the recordings).

In April 2000, family members of the student victims initiated this action against the JCSO seeking access under CCJRA to certain information it collected during its investigation. Other parties were allowed to intervene, but no one sought disclosure of the recordings.

In May 2000, the JCSO issued a Final Report announcing its conclusions. The JCSO later returned to the families many of the items seized, however, it kept the recordings.

In January 2002, the Post intervened with a request to review the recordings. The trial court bifurcated the proceedings, to determine first whether the recordings were "criminal justice records" within the meaning of CCJRA, and second whether they should be disclosed to the public pursuant to CCJRA.

The trial court concluded that the recordings were not "criminal justice records" merely because the JCSO possessed them, that the specific items sought by the Post were not "criminal justice records," and, accordingly, that CCJRA did not govern their release and disclosure.

On January 29, 2004, we issued an opinion in which we held that the recordings were public records subject to CCJRA, but remanded the matter to the trial court for a determination of whether, on the date of the Post's request, the JCSO was holding the recordings "for use in the exercise of functions required or authorized by law or administrative rule" under § 24-72-302(4), C.R.S.2003. The Post filed a petition for rehearing, arguing that we were incorrect in concluding that the recordings were criminal justice records only for so long as they were held for the purposes enunciated by CCJRA. We requested that defendants file a response to that petition.

Upon consideration of the original briefs, the petition for rehearing, and the response to that petition, we withdraw the prior opinion but again remand the case to the trial court for further proceedings.

I.

At the outset, we note that, with exceptions not applicable here, property seized by law enforcement officials remains the property of its owner prior to the seizure. See People v. Angerstein, 194 Colo. 376, 572 P.2d 479 (1977); People v. Buggs, 631 P.2d 1200 (Colo.App.1981).

It is clear that the recordings are not, and never have been, the property of the JCSO. As to the Klebolds, this issue was previously determined in Klebold v. Search & Seizures, (Colo.App. No. 01CA1240, 2002 WL 31033085, May 16, 2002)(not published pursuant to C.A.R. 35(f)), in which the family requested the return of tapes and documents, some or all of which are the subject of this proceeding. The JCSO disclaims ownership of the recordings.

II.

We next address whether the recordings are "criminal justice records" under CCJRA. We conclude that they are not. We further conclude, however, that they are public records, the disclosure of which is governed by the Colorado Open Records Act, § 24-72-101, et seq., C.R.S.2003 (CORA).

Our review of a trial court's interpretation of a statute is de novo. Rowell v. Clifford, 976 P.2d 363 (Colo.App.1998). The primary task of a court in construing a statute is to give effect to the intent of the General Assembly. Courts must look primarily to the language of the statute and determine the legislative intent by giving effect to the commonly accepted meaning of the words. Only if the statutory text is ambiguous should a court employ alternative means to determine legislative intent. Reg'l Transp. Dist. v. Voss, 890 P.2d 663 (Colo.1995). Such aids of construction include other statutory provisions, including laws on the same or similar subjects; consequences of a particular construction; and legislative declarations of purpose. Section 2-4-203, C.R.S.2003. Further, statutes should be interpreted, if possible, to harmonize and give meaning to other potentially conflicting statutes, People in Interest of D.L.E., 645 P.2d 271 (Colo.1982), and to give consistent, harmonious, and sensible effect to all their parts. In re Marriage of Davisson, 797 P.2d 809 (Colo.App.1990).

CCJRA is a part of CORA and addresses a particular subset of records maintained by law enforcement, or criminal justice, agencies. The purpose of CCJRA is stated as follows: "The General Assembly hereby finds and declares that the maintenance, access and dissemination, completeness, accuracy, and sealing of criminal justice records are matters of statewide concern and that, in defining and regulating those areas, only statewide standards in a state statute are workable." Section 24-72-301(1), C.R.S.2003. Further, the public policy underlying CCJRA is "that criminal justice agencies shall maintain records of official actions ... and that such records shall be open to inspection by any person and to challenge by any person in interest." Section 24-72-301(2), C.R.S.2003.

The term "criminal justice records" is defined broadly as "all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule." Section 24-72-302(4), C.R.S.2003. However, other words and phrases used to describe categories of criminal justice records narrow the application of CCJRA. For example, "official action" means "an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence." Section 24-72-302(7), C.R.S.2003. "Arrest and criminal records information" means:

information reporting the arrest, indictment, or other formal filing of criminal charges against a person; the identity of the criminal justice agency taking such official action relative to an accused person; the date and place that such official action was taken relative to an accused person; the name, birth date, last-known address, and sex of an accused person; the nature of the charges brought or the offenses alleged against an accused person; and one or more dispositions relating to the charges brought against an accused person.

Section 24-72-302(1), C.R.S.2003.

Further, CCJRA does not define or use "records of investigations," "investigative files or records," or any similar term.

Like CCJRA, CORA also broadly defines the general category of files and records of public agencies to which it applies. The term "public records" is defined in § 24-72-202(6)(a)(I), C.R.S.2003, as follows:

all writings made, maintained, or kept by the state, any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5-121(2), C.R.S. [corporations formed by various public entities to hold and develop scientific and technological discoveries], or political subdivision of the state, or that are described in section 29-1-902, C.R.S. [local government-financed entity], 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.

CORA indirectly defines those public entities keeping and maintaining public records in the definition of "official custodian," which is:

any officer or employee of the state, of any agency, institution, or political subdivision of the state, or of any local government-financed entity who is responsible for the

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