Denver Pub. Co. v. County Comm. of Arapahoe, 03SC783.

• Decision Date: 12 September 2005
• Docket Number: No. 03SC783.,03SC783.
• Citation: 121 P.3d 190
• Parties: The DENVER PUBLISHING COMPANY d/b/a Rocky Mountain News, Petitioner, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Colorado; Tracy Baker, Clerk & Recorder, Arapahoe County; and Leesa Sale, Assistant Deputy Clerk, Respondents.
• Court: Colorado Supreme Court

Page 190

121 P.3d 190

The DENVER PUBLISHING COMPANY d/b/a Rocky Mountain News, Petitioner, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Colorado; Tracy Baker, Clerk & Recorder, Arapahoe County; and Leesa Sale, Assistant Deputy Clerk, Respondents.

No. 03SC783.

Supreme Court of Colorado, En Banc.

September 12, 2005.

Baker & Hostetler, LLP, Marc D. Flink, Casie D. Collignon, Denver, for the Petitioner.

Kathryn L. Schroeder, Arapahoe County Attorney, Ronald A. Carl, Deputy County Attorney, Littleton, for the Respondent Board of County Commissioners of Arapahoe County.

Hall & Evans, Thomas Lyons, Harry Souvall, Denver, Amicus Curiae for the Colorado Counties, Inc.

King & Greisen, LLP, Julie C. Tolleson, American Civil Liberties Union of Colorado, Mark Silverstein, Legal Director, Denver, Amicus Curiae for the American Civil Liberties Union of Colorado.

Faegre & Benson LLP, Thomas B. Kelley, Steven D. Zansberg, Denver, Amicus Curiae for the Colorado Press Association and Colorado Freedom of Information Council.

MARTINEZ, Justice.

Petitioner, Denver Publishing Company (DPC), appeals a court of appeals' decision reversing an order of the district court and stopping the public release of several e-mail messages maintained by Arapahoe County. See In re Bd. of County Comm'rs, 95 P.3d 593 (Colo.App.2003). The court of appeals found that although all of the e-mail messages between an elected official, Tracy Baker, and a public employee, Leesa Sale, were public records subject to the disclosure provisions of the Colorado Open Records Act (CORA), there exists a constitutional privacy exception to the statute that was not properly considered by the trial court. Accordingly, the court of appeals remanded the case to the district court to determine which messages, if any, fell within the constitutional privacy exception to the statute and should be protected from disclosure.

We begin our analysis by looking to the definition of "public records" set forth in CORA and by considering this successful 1968 Act in light of earlier failed legislation. We find that the General Assembly has not defined "public records" to include all records that a public agency made, maintained, or kept. Instead, only those records that a public agency 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 are "public records." Further, when the General Assembly amended CORA in 1996, and added e-mail and the correspondence of elected officials to the definition of "public records", the General Assembly maintained the requirement that records made, maintained, or kept by a public agency have a demonstrable connection to the exercise of functions required or involved in the receipt or expenditure of public funds. In addition, the General Assembly also specifically provided that acceptance of compensation or use of funds or equipment in creating, receiving, or maintaining the e-mail does not convert a record that is not a public record into a public record as defined by CORA. We conclude that the General Assembly has provided that the content of a public official's e-mail message must be examined to determine whether the e-mail addresses public functions or the receipt or expenditure of public funds to decide whether the e-mail is a "public record."

Thus, we determine that the express provisions of CORA, namely the definition of "public records" set forth in section 24-72-202(6)(a), C.R.S. (2004), protect the privacy interests at issue in this case and therefore the court of appeals unnecessarily reached the constitutional analysis of the e-mail messages. In applying the definition of "public records", we conclude that many of the e-mail messages at issue are not, in fact, public records within the scope of CORA. Because the court of appeals and district court concluded that all the e-mail messages at issue were public records, we remand the case for findings consistent with this opinion.

I. Facts and Procedure

In 2002, the Board of County Commissioners of Arapahoe County ("the Board") initiated an investigation of the Arapahoe County Clerk and Recorder's Office upon allegations of constructive discharge, sexual harassment/hostile work environment, violations of open meetings laws, violations of the Campaign Practice Act, and misuse of County property and funds. The investigation focused on County Clerk and Recorder, Baker, as well as the Assistant Chief Deputy Clerk of Arapahoe County, Sale, who were said to be involved in an extra-marital sexual relationship.

The end product of the investigation was an extensive report ("the report") created by a private investigator hired by the County that set forth his findings. The report contained one binder made up of several subreports and supporting documentation. As part of the report and supporting documentation, the investigator identified, among other things, 622 e-mail messages authored by Baker, or authored by Sale and sent to Baker, that were sent using the County's e-mail and text-pager systems.¹ Of these messages, 570 contained sexually explicit and/or romantic content sent between Baker and Sale. Although the Board subsequently released the report to the public in October 2002, it was redacted and did not contain the contents of the sexually explicit messages or the subreport titled "Sexual Harassment/Hostile Environment".

Following the release of the redacted report, the Board received several written requests from media outlets, including DPC, that a non-redacted copy of the report be released and "all of the e-mail messages, instant messages or other electronic communications sent or received by Baker" for a 33-month period be disclosed pursuant to the provisions of CORA.

The Board did not disclose a non-redacted version of the report or the messages upon request, but instead filed a petition in the district court pursuant to section 24-72-204(6)(a), C.R.S. (2004), of CORA for a judicial determination whether the requested items could be released. The Board asserted that there was a strong public interest in the disclosure of information relevant to alleged official misconduct, but wanted to ensure that the rights of all parties were protected. The Board specifically sought a court determination whether disclosure of the non-redacted report was prohibited by section 24-72-204 or whether disclosure was prohibited or restricted by the constitutional right to privacy. DPC intervened in the action contending that the report and e-mail messages were public records pursuant to CORA and the custodian of records had no statutory basis for objecting to the release of such public records.

As interested parties, Baker and Sale contested the disclosure of the e-mail messages as part of the released report as well as any separate release of the e-mail messages. To support their argument against the release of the messages, Baker and Sale asserted three arguments. First, they argued that the messages were not "public records" as provided in section 24-72-202 and therefore did not fall within the mandatory disclosure provisions of CORA. Second, even if the messages were "public records" as defined by CORA, the messages fell within several of the statutorily enumerated exceptions to CORA and were therefore exempt from disclosure and, in some cases, prohibited from disclosure altogether. Last, even if the express provisions mandated or permitted disclosure, Baker and Sale argued that state and federal constitutional privacy rights protected the messages from disclosure to the public.

After a hearing on the petition, the district court entered its ruling finding that the messages were public records within the scope of CORA and not subject to any express or implied exemptions. The court also found that Baker and Sale did not maintain any expectation of privacy in the messages and therefore the messages were not constitutionally protected from disclosure. Accordingly, the district court ordered the redacted portion of the report released, including all of the e-mail messages therein.

Baker and Sale appealed, setting forth the same arguments as raised before the district court. The court of appeals agreed with Baker and Sale, in part, and reversed the order of the district court. See In re Bd. of County Comm'rs, 95 P.3d at 604. In doing so, the court of appeals reached, inter alia, four legal conclusions regarding the operation of CORA and its function in relation to an individual's right to privacy.

First, the court of appeals found that all of the messages at issue, regardless of their content, were public records subject to the provisions of CORA because the messages were "writings" as defined by section 24-72-202(7), C.R.S. (2004), and were maintained by the county. Id. at 597. Second, the court of appeals found that the messages did not "fall within the exception" for correspondence of an elected official as described by section 24-72-202(6)(a)(II)(B) because the messages involved the expenditure of public funds. Id. at 597-98. Third, the court found that the subreport on "Sexual Harassment/Hostile Environment" as well as any messages identifying the complaining employee were precluded from disclosure pursuant to section 24-72-204(3)(a)(X)(A) because the report was a record of sexual harassment complaints and investigations and CORA protected the identity of the employees involved. See id. at 598-99. Fourth, the court of appeals found that although the sexually explicit e-mails unrelated to county business were public records that fell within the scope of CORA, some of the messages were nevertheless exempt from disclosure because they were protected by the constitutional right to privacy. Id. at 599-604. The court of appeals found that the factors set forth in Martinelli v. Dist. Court, 199 Colo. 163, 612 P.2d 1083 (1980), to determine if documents fell...