Denver Post Corp. v. Ritter, 08CA2659.

• Citation: 230 P.3d 1238
• Case Date: December 24, 2009
• Court: Court of Appeals of Colorado

230 P.3d 1238

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.

No. 08CA2659.

Colorado Court of Appeals,
Div. A.

Dec. 24, 2009.

230 P.3d 1239

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

230 P.3d 1240

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.I. Standard of Review A. Trial Court Standard of Review

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) (a court may consider facts of which it may take judicial notice without converting a motion to dismiss into one for summary judgment); see also Kendall v. San Juan Silver Mining Co., 9 Colo. 349, 354, 12 P. 198, 200 (1886) (court must take judicial notice of stipulations of fact).

B. Standard of Review on Appeal

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).

II. Legal Framework: Shifting Burdens of Proof A. CORA

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) (citing legislative declaration of intent for 1996 amendments to CORA, which addressed e-mail). 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 (declaring legislature's intent to make all “public records” available for inspection). 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 (recognizing “the privacy protection already integrated into CORA's express statutory provisions”).

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 (seizure of private document pursuant to a search warrant); §§ 24-72-301 to -309, C.R.S.2009 (Colorado Criminal Justice Records Act (CCJRA), providing for access to criminal justice records); 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) (records not subject to CORA were subject to disclosure pursuant to CCJRA).

230 P.3d 1241

B Wick

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.

C Denver Publishing Co.

Only when the requesting party makes the required threshold showing...