Denver Post Corp.. v. Ritter

• Decision Date: 20 June 2011
• Docket Number: No. 10SC94.,10SC94.
• Citation: 255 P.3d 1083,39 Media L. Rep. 2211
• Parties: DENVER POST CORPORATION, a Colorado corporation, d/b/a The Denver Post, and Karen Crummy, a Colorado citizen, Petitionersv.Bill RITTER, Governor of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

255 P.3d 1083

39 Media L. Rep. 2211

DENVER POST CORPORATION, a Colorado corporation, d/b/a The Denver Post, and Karen Crummy, a Colorado citizen, Petitioners

v.Bill RITTER, Governor of the State of Colorado, Respondent.

No. 10SC94.

Supreme Court of Colorado, En Banc.

June 20, 2011.

Levine Sullivan Koch & Schulz, L.L.P., Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Denver, Colorado, Attorneys for Petitioners.John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, Attorneys for Respondent.Baker & Hostetler L.L.P., Marc D. Flink, Denver, Colorado, Attorneys for Amici Curiae The Reporters Committee for Freedom of the Press, The American Society of News Editors, The Associated Press, The Association of Capitol Reporters and Editors, The Colorado Freedom of Information Council, The Colorado Press Association, The E.W. Scripps Company, Gannett Co., Inc.; Newspaper Association of America; The Radio Television Digital News Association; The Society of Professional Journalists.Rachel L. Allen, Denver, Colorado, Attorneys for Amicus Curiae Colorado Municipal League.Justice HOBBS delivered the Opinion of the Court.

In Denver Post Corp. v. Ritter, 230 P.3d 1238 (Colo.App.2009), the court of appeals concluded that cell phone bills for calls Governor Bill Ritter (“the Governor”) made on his personal cell phone were not public records subject to disclosure under the Colorado Open Records Act (“CORA”). §§ 24–72–201 to –206, C.R.S. (2010). We granted certiorari, and affirm.¹

Petitioners, journalist Karen Crummy and her employer Denver Post Corporation (collectively referred to as “the Post”), in 2008 requested access to the Governor's cell phone bills. In response to this request, the Governor provided cell phone bills from his state-paid Blackberry device. The Governor also owned a personal cell phone that he predominantly used throughout the week to make and receive calls. He personally paid all the bills for this cell phone. He refused to provide access to the bills the carrier prepared for this phone, claiming that these bills are not public records subject to disclosure under CORA.

The requested phone bills include approximately 10,000 phone calls. They list the date, time, telephone number, rate, minutes of duration of the call, city and state where the call originated and of the number called, and the airtime and long distance charges if any. The bills do not contain any content of messages, nor do they identify the names of persons the Governor called or the names of those who called him.

The district court granted the Governor's motion to dismiss the Post's complaint for failure to state a claim, pursuant to C.R.C.P. 12(b)(5), concluding that the Governor's personal cell phone bills were not likely public records subject to disclosure under CORA. The court of appeals affirmed the district court's judgment. Ritter, 230 P.3d at 1244. We agree.

CORA defines “public records” as

all writings made, maintained, or kept by the state, any agency, institution, ... or political subdivision of the state ... for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.

§ 24–72–202(6)(a)(I) (emphasis added). The Post's complaint alleges that, when a public official uses a personal phone to discuss public as well as private business, the billing statements generated by the phone company and kept in the official's possession are public records. We disagree.

We hold that the Post's complaint fails to allege facts which, accepted as true, state a claim that the Governor's personal cell phone billing statements are likely public records under CORA. The Post's complaint is conclusory in nature. It asserts a legal theory but does not allege facts which, if proved, would demonstrate that the Governor made the billing statements or kept or maintained them in his official capacity. The stipulation of facts the parties agreed to recites that the Governor kept and used the billing statements only for payment of the bills, did not obtain any reimbursement from the State for his payment of them, and has not turned the bills over to any other State agency or official for use by them. Thus, the Post did not allege facts showing that he kept the personal cell phone bills in his official capacity and the burden did not shift to the Governor to demonstrate that the phone bills are not a public record under CORA. Accordingly, we affirm the judgment of the court of appeals.

I.

The parties have cooperated with each other in framing the legal and factual issues for decision by the district court, the court of appeals, and us. Before us, we have the Post's complaint for declaratory judgment and order to show cause why the records should not be disclosed, a stipulation of facts the Governor and the Post entered into describing the contents of the records in question, the parties' briefs, and the oral argument audio recordings. In addition, as did the court of appeals, we consider the Post's first amended complaint although the trial court denied the Post leave to file it.

The Post's complaint filed with the district court on August 11, 2008 alleges a legal theory that the Governor's personal cell phone bills are public records:

Under the CORA, any person may request access to inspect and obtain a copy of any public record. See § 24–72–203(1)(a), C.R.S.

Under the CORA, a public record is defined as any writing “made, maintained or kept by ... any ... political subdivision of the state ... for use in the exercise of functions required or authorized by law or administrative rule.” See § 24–72–202(6)(a)(I), C.R.S. This provision makes clear that records that involve no expenditure of public funds are nevertheless “public records,” and are subject to inspection under the CORA....

The Governor's position that the subject telephone records are not public records under the above-quoted definition is not well taken. The Governor's cell phone is used “in the exercise of functions required or authorized by law or administrative rule,” and the records of its use are likewise generated as a by-product and contemporaneous records of the conduct of public business. The records are regularly furnished to the Governor by his cell phone provider, and maintained or kept by him for a period of time, and in any event remain available to him upon request from the carrier. The Governor has confirmed that some or all of the records requested are in his possession, custody, and control. It is obvious that if any high ranking government executive may “privatize” his conduct of public business by establishing a private account for dealing with private providers of communications technologies, it would allow government officials to unilaterally create a vast and unacceptable “loophole” in the requirements of CORA.

The complaint goes on to assert that “[t]he documents requested by The Post were ‘made, maintained, or kept’ by the State for use in the exercise of functions authorized by law, and are therefore ‘public records.’ See § 24–72–202(6)(a)(I), C.R.S.” The complaint requests a court order directing Governor Ritter to show cause why he should not allow inspection of the requested records.

On September 5, 2008, the Governor filed a motion under C.R.C.P. 12(b)(5) to dismiss the Post's complaint for failure to state a claim upon which relief can be granted. In that motion, the Governor contends that the requested personal cell phone bills are not “public records” under CORA because he did not make, maintain, or keep the bills in his official capacity. Alternately, he argues that the bills are protected under the work product exception to CORA, section 24–72–202(6)(b)(II). Finally, he claims that personal calls not pertaining to official business are protected by CORA's exception for confidential constituent communications, pursuant to section 24–72–202(6)(a)(II)(C).

In response to the Governor's motion to dismiss, the Post contends that, because the Governor's cell phone usage was likely billed on a flat rate plan, he had no need to keep the bills other than to determine with whom he spoke and on what date and time, since the amount owed was not related to the calls recorded. The Post also claims that the Governor “made” the cell phone bills because by using his phone, he in effect requested that the phone company create the bills. The Post argues that none of the calls listed on the billing statements satisfy CORA's work product exception because the records do not express an opinion and are not deliberative in nature. Finally, the Post posits that the “constituent communications” exception does not apply to the requested bills because the bills themselves are communications from the Governor's cell phone service provider, and not from a constituent.

On October 13, 2008 the parties filed with the court a joint stipulation of facts for the show cause hearing the court set for October 17, 2008. The stipulation reads in full as follows:

The Parties, by and through their undersigned counsel, hereby stipulate that the following facts are undisputed, and can be treated as admitted, by all parties, for purposes of the Hearing on the Order to Show Cause, on October 17, 2008, at 1:30 p.m.:

1. The Governor has two cell phones. One is a BlackBerry issued and paid for by the State (the “State BlackBerry”), which is primarily used by the Governor to send and receive e-mail and to review his schedule. The Governor makes only occasional use of the State BlackBerry to place and receive phone calls.

2. The Governor also has a personal cell phone (“Governor's personal cell phone”), which is not owned or issued by the State. The State neither pays nor reimburses the Governor for charges associated with its use.

3. Substantially all of the cellular phone calls that the Governor places and receives,...