Denver Post Corp. v. Ritter, 08CA2659.
| Decision Date | 24 December 2009 |
| Docket Number | No. 08CA2659.,08CA2659. |
| Parties | DENVER POST CORP., a Colorado corporation, d/b/a The Denver Post; and Karen Crummy, Plaintiffs-Appellants,v.Bill RITTER, Governor of the State of Colorado, Defendant-Appellee. |
| Court | Colorado Court of Appeals |
Levine Sullivan Koch & Schulz, L.L.P., Thomas B. Kelley, Steven D. Zansberg, Christopher P. Beall, Denver, Colorado, for Plaintiffs-Appellants.
John W. Suthers, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, for Defendant-Appellee.
Opinion by Chief Judge DAVIDSON.
The issue presented in this appeal is whether the personal cell phone billing statements of defendant, Governor Bill Ritter, constitute public records subject to disclosure under the Colorado Open Records Act (CORA), sections 24-72-201 to -206, C.R.S.2009. We affirm the judgment dismissing the action to access the bills pursuant to CORA.
The following facts have been stipulated to or are not disputed: Ritter has both an official cell phone (a smartphone), for which the state pays and which Ritter uses almost exclusively for e-mail, and a personal cell phone, for which Ritter pays and which he uses for both official and personal telephone calls. The personal phone is not owned by and was not issued by the state, and the state neither pays for the phone nor reimburses Ritter for charges associated with its use. Substantially all the cell phone calls in which Ritter conducts state business are made or received on his personal phone. The majority of calls made or received on Ritter's personal phone during regular business hours are calls in which he discusses official business in his capacity as governor.
When Ritter makes or receives a call on his personal phone, the service provider automatically logs the date, time, and duration of the call and the telephone number of the other party. The service provider sends Ritter monthly billing statements that include this information. Ritter has not used the bills for any purpose other than to determine the amount owed and has not provided them to any other state officer or employee for any purpose.
Plaintiffs, Karen Crummy and her employer, Denver Post Corp., doing business as The Denver Post (collectively, the Post ), requested access to the bills pursuant to CORA. The governor's office provided the records from the state-paid cell phone, but refused to provide the records from the personally-paid cell phone, stating that the personal cell phone bills were not public records subject to CORA. The Post then filed this action.
On Ritter's motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5), the trial court determined that the Post had not shown that the requested documents were likely public records, denied the Post's motion to amend its complaint, and dismissed the case. The Post appeals, and on grounds different from those relied on by the trial court, we affirm.
The dismissal of a complaint under C.R.C.P. 12(b)(5) is proper if, accepting all allegations of the complaint as true, it appears beyond a doubt that the plaintiff is not entitled to relief as a matter of law. See, e.g., Public Service Co. v. Van Wyk, 27 P.3d 377, 385-86 (Colo.2001). In its order, the trial court correctly examined the allegations of the complaint in the light most favorable to the Post, and, in concluding that the requested bills were not likely public records as a matter of law, assumed all of the Post's factual allegations were true.
Contrary to Ritter's suggestion, we do not agree that the trial court's consideration of the parties' stipulation of facts converted the Rule 12(b)(5) motion to a motion for summary judgment under C.R.C.P. 56. See C.R.C.P. 12(c); Walker v. Van Laningham, 148 P.3d 391, 397 (Colo.App.2006) (); see also Kendall v. San Juan Silver Mining Co., 9 Colo. 349, 354, 12 P. 198, 200 (1886) ().
We review de novo the dismissal of a complaint for failure to state a claim under C.R.C.P. 12(b)(5). Like the trial court, we accept the Post's factual allegations as true and construe them in the light most favorable to the Post. See Asphalt Specialties, Co. v. City of Commerce City, 218 P.3d 741, 744 (Colo.App.2009); Kreft v. Adolph Coors Co., 170 P.3d 854, 857 (Colo.App.2007).
Subject to exceptions not relevant here, CORA requires that all public records be open for inspection. § 24-72-201, C.R.S.2009. CORA defines a “public record” as “all writings made, maintained, or kept” by the state “for use in the exercise of functions required or authorized by law” or involving public funds. § 24-72-202(6)(a)(I), C.R.S.2009.
By its terms, CORA balances the public's interest in access to information about how its government operates against the privacy interests of public officials and employees. See Denver Publ'g Co. v. Bd. of County Comm'rs, 121 P.3d 190, 194 (Colo.2005) (). Consequently, although the statute generally favors access, CORA does not require public disclosure of all documents in the custody of state employees or agencies. See § 24-72-201, C.R.S.2009 (). Thus, in CORA, both the definition of “public records” and the enumerated exceptions limit which documents are required to be disclosed. See Denver Publ'g Co., 121 P.3d at 194 ().
However, because the balancing of competing public and private interests is resolved differently in other contexts, documents not subject to disclosure under CORA may still be discoverable under other legal mechanisms. See, e.g., Colo. Const. art. 2, § 7 (); §§ 24-72-301 to -309, C.R.S.2009 (); C.R.C.P. 26(b)(1), 34(a)(1) (civil discovery); see also Harris v. Denver Post Corp., 123 P.3d 1166 (Colo.2005) ().
The parties agree, as do we, that our initial analysis is governed by Wick Communications Co. v. Montrose County Board of County Commissioners, 81 P.3d 360 (Colo.2003).
According to Wick, when it is disputed whether a requested record is private or public, the court must determine as a threshold matter whether the requested records are likely public records as defined by CORA. When the custodian is a government agency, the burden of proving that a record is not public is on that agency because it holds the necessary information. Id. at 363-64.
However, when, as here, the custodian is not an agency but an individual with both private and official capacities, and it is disputed in which capacity he or she holds the record, the burden of showing that the record is likely a public record as defined by CORA is placed on the requesting party. To meet that initial burden, the requesting party must show that the record was likely “made, maintained, or kept” by the custodian in his or her official capacity. Id.
Only when the requesting party makes the required threshold showing that the records are made, maintained, or kept by the custodian in his or her official capacity does the burden shift to the custodian to show that the records were not “for use in the exercise of functions ... authorized by law.” Denver Publ'g Co., 121 P.3d at 199; see § 24-72-202(6)(a)(I). Thus, it is only at this point that the court is to examine whether the contents of the records “address the performance of public functions,” that is, whether the records are being held for use in the exercise of public functions. Denver Publ'g Co., 121 P.3d at 199 (citing Wick, 81 P.3d at 366).
Accordingly, under Wick, the Post had the initial burden to show that the bills were likely “made, maintained, or kept” by Ritter in his official capacity as governor. 81 P.3d at 364. Because we conclude that the Post did not meet its required burden, we further conclude that the trial court properly dismissed the complaint.
Initially, we agree with the Post's contention that, in its ruling, the trial court improperly placed on the Post the burden of showing the bills were likely public records by requiring it to show not only that the bills were likely made, maintained, or kept by the governor but also that they were “for official use.”
In its order, the court found that under the facts of the complaint, taken as true and viewed most favorably to the Post, Ritter “maintained or kept” the bills. However, the court did not determine, as required by Wick, in what capacity Ritter did so. Instead, it analyzed whether the billing records were kept “for official use” under the test set forth in Denver Publishing Co.
In its analysis, the court determined that, pursuant to Denver Publishing Co., although no allegation of actual official use was required, the Post was required to allege a likely future official use. The court agreed that the bills were connected with official business because Ritter used the cell phone for official calls, but it concluded that the complaint had not sufficiently alleged facts to show that the bills themselves were kept for official use.
To the extent that the court's analysis placed the burden on the Post to show that the bills were being kept “for official use,” we agree with the Post that the court erred. See Denver Publ'g Co., 121 P.3d at 199 (...
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