Freedom v. El Paso County Sheriff's Dept.

• Decision Date: 10 November 2008
• Docket Number: No. 08SA151.,08SA151.
• Citation: 196 P.3d 892
• Parties: In re FREEDOM COLORADO INFORMATION, INC., a Delaware corporation doing business as The Gazette; and Dennis Huspeni, a Colorado citizen, Plaintiffs v. EL PASO COUNTY SHERIFF'S DEPARTMENT; and Terry Maketa, in his official capacity as the El Paso County Sheriff, an elected official of El Paso County, Colorado, a political subdivision, Defendants and John Does I and II, Intervenors.
• Court: Colorado Supreme Court

196 P.3d 892

In re FREEDOM COLORADO INFORMATION, INC., a Delaware corporation doing business as The Gazette; and Dennis Huspeni, a Colorado citizen, Plaintiffs v. EL PASO COUNTY SHERIFF'S DEPARTMENT; and Terry Maketa, in his official capacity as the El Paso County Sheriff, an elected official of El Paso County, Colorado, a political subdivision, Defendants and John Does I and II, Intervenors.

No. 08SA151.

Supreme Court of Colorado, En Banc.

November 10, 2008.

Levine Sullivan Koch & Schulz, L.L.P., Steven D. Zansberg, Adam M. Platt, Denver, Colorado, Attorneys for Plaintiffs.

Charles C. Greenlee, El Paso County Sheriff's Office, Colorado Springs, Colorado, Attorney for Defendants.

James A. Reed, P.C., James A. Reed, Colorado Springs, Colorado, Attorneys for Intervenors John Does I & II.

Justice HOBBS delivered the Opinion of the Court.

Pursuant to C.A.R. 21, we accepted jurisdiction in this original proceeding to consider whether the District Court for El Paso County lacked subject matter jurisdiction or erred as a matter of law by applying the wrong legal standard in ordering the release of the El Paso County Sheriff's internal affairs investigation file ("the file") concerning former deputy sheriff Shawn Moncalieri. The petitioners are two brothers ("John Does") who were wrongfully arrested twice because of this officer's malfeasance. Following the internal affairs investigation, El Paso County Sheriff Terry Maketa ("Sheriff"), terminated Moncalieri's employment. The John Does obtained $20,000.00 each as a settlement from El Paso County for release of any claims they might have against the county for their wrongful arrests.

The John Does also sought relief from the El Paso County District Court in the form of sealing the records of "official action[s]" pertaining to their arrest, pursuant to section 24-72-308, C.R.S. (2008), of the Colorado Criminal Justice Records Act ("CCJRA"). In that action, which is separate from the one before us, El Paso County District Court Judge Ronald Crowder ordered the sealing of all the records in the four criminal cases involving the John Does, as well as the two civil actions in which the John Does obtained the sealing order.

Pursuant to CCJRA sections 24-72-304 and -305, C.R.S. (2008), The Gazette newspaper of Colorado Springs sought to inspect the Sheriff's internal affairs investigation file pertaining to the discharged deputy sheriff. Because the file does not fall within the definition of an "official action" as defined by CCJRA section 24-72-302(7), C.R.S. (2008), inspection of this file is subject to the exercise of the Sheriff's sound discretion under sections 24-72-304 and -305 of the CCJRA. Harris v. Denver Post, 123 P.3d 1166, 1175 (Colo.2005). The Sheriff refused to allow inspection of the file.

Under CCJRA section 24-72-305(7), C.R.S. (2008), The Gazette initiated the case now before us by applying to the El Paso County District Court for an order to show cause why the file should not be made available for inspection. Judge G. David Miller heard the case and ordered the release of the entire file, including the names of the John Does, redacting only the addresses, social security numbers, and dates of birth of individuals named in the file.

Upon petition by the John Does, we issued our order to show cause, which had the effect of prohibiting release of the file pending our review of the district court's decision. The John Does contend Judge Miller lacked jurisdiction to release the Sheriff's internal affairs file to The Gazette. We disagree.

Section 24-72-308(1)(c), C.R.S. (2008), of the CCJRA, which addresses sealing records of "official action," assigns the role of balancing the public and private interests involved to the district court. Judge Crowder conducted such balancing before sealing the four criminal cases and two civil cases.

In contrast, the file is not a record of "official action," but remains a criminal justice record under the CCJRA, the public disclosure of which is subject to discretion of the Sheriff, not the court. Pursuant to sections 24-72-304 and -305, the Sheriff must balance the public and private interests involved in the inspection request and determine whether to allow full disclosure, redacted disclosure, or no disclosure of the record. Harris, 123 P.3d at 1174-75.

We hold that the El Paso County District Court erred as a matter of law by applying the wrong legal standard in performing the balancing of public and private interests required by the CCJRA to be performed by the Sheriff as custodian of the file. The balancing role we described in Harris entails weighing the array of interests involved in the inspection request and making an inspection determination supported by an adequate rationale. Id. at 1174. Because the Sheriff did not properly perform his role in this CCJRA inspection request case, hindering the court's judicial review role, the district court should have ordered him to do so. Consequently, we make our rule absolute and order the El Paso County District Court to return this matter to the Sheriff for an inspection determination that complies with the CCJRA and our decision in Harris.

I.

Deputy Sheriff Shawn Moncalieri was the subject of six internal affairs investigations during his approximately four years of service at the Sheriff's office. He was terminated on March 6, 2007, following an internal affairs investigation of his role in a double set of wrongful arrests of two John Does, brothers, aged 18 and 20.

The internal affairs investigations file containing the details of these wrongful arrests has been submitted under seal to this court, as it was to the trial court. These documents reveal Moncalieri's malfeasance that led to the wrongful arrest of the John Does on two separate occasions. Over five-hundred pages of the nearly one-thousand page internal affairs file in this case concern Moncalieri's role in the arrests of the John Does.

On February 28, 2007, a week before Moncalieri's termination, the legal affairs reporter for The Gazette, Dennis Huspeni, filed a request with the Sheriff to inspect the internal affairs investigations file, pursuant to the Colorado Open Records Act ("CORA"), sections 24-72-202 to -206, C.R.S. (2008), and the CCJRA, sections 24-72-301 to -309, C.R.S. (2008). Several weeks later, Huspeni made a second request for inspection of the file. The Sheriff responded that he was awaiting Moncalieri's claim to any privacy interest before making an inspection decision.

Moncalieri described his privacy interest in an April 10, 2007, sworn affidavit. He stated he was told during the internal affairs investigation that the information he "was questioned about would be confidential and not be released to the public," and that he "made statements about [his] personal life that [he] would not have made if [he] had known that these statements were going to be published." Two days after Moncalieri submitted his affidavit, the Sheriff denied The Gazette's request for inspection of the file in a four sentence letter:

You requested to be allowed to inspect the Internal Affairs files of former Deputy Moncalieri on February 28, 2007 and March 22, 2007. Mr. Moncalieri, through his attorney, Richard Radabaugh, sent us a letter stating his privacy interests in these files. I have briefed my client on Mr. Moncalieri's submission. My client has decided not to make Mr. Moncalieri's Internal Affairs files available for inspection or release.

On August 3, 2007, Judge Crowder sealed the John Does' arrest and criminal records in the four criminal cases involving their double set of arrests, as well as the John Does' two civil actions in which they each obtained the sealing relief. Judge Crowder found that "the harm to [the] privacy ... or dangers of unwarranted adverse consequences" to each John Doe "outweigh[s] the public interest in retaining the record."

On April 15, 2008, after the denial of another Gazette reporter's request for the names of the John Does in connection with an inspection request for the county settlement records,¹ The Gazette filed its petition with the district court in this case for a show cause order seeking inspection of the file concerning Moncalieri. District Court Judge Miller issued the show cause order, set a hearing for April 23, 2008, and conducted an in camera review of the file. Prior to the April 23 hearing, Moncalieri's attorney had filed an affidavit from the former deputy objecting to the records production on privacy grounds. Also prior to the hearing, the court granted the John Does' and the Board of County Commissioners' motions to intervene in this case.

The Sheriff's response to the district court's show cause order did not demonstrate that he balanced the public and private interests involved in The Gazette's inspection request. Instead, the response repeatedly referred to what the Sheriff assumed to be the court's responsibility to conduct a Martinelli analysis, which, as we discuss below, is inapplicable to this CCJRA case. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

On April 28, 2008, Judge Miller ordered the release of all "completed and closed Internal Affairs Investigation reports concerning El Paso County Sheriff's Department Deputy Shawn Moncalieri." The order required that "personal information pertaining to Moncalieri, the John Does, and all other witnesses or complainants in the investigations" be redacted. Judge Miller, however, did not order the redaction of the names of the John Does, Moncalieri, or any of the witnesses interviewed by the Sheriff's Internal Affairs Unit.

Under the CCJRA, the Sheriff is required to balance the public and private interests. He did not do so here. Instead, Judge Miller performed the balancing that was the responsibility of the Sheriff. To frame his analysis, Judge Miller employed the factors set forth in Martinelli, 199 Colo. at 173-74, 612 P.2d at 1091:(1) whether there...