Harris v. Denver Post Corp.

Citation123 P.3d 1166
Decision Date15 November 2005
Docket NumberNo. 04SC133.,04SC133.
PartiesWayne HARRIS; Katherine Harris; Thomas Klebold; Susan Klebold; Theodore B. Mink, III, in his capacity as Sheriff of Jefferson County, Colorado; and Jefferson County Sheriff's Department, Petitioners, v. The DENVER POST CORPORATION, d/b/a the Denver Post, Respondent.
CourtSupreme Court of Colorado

Montgomery, Kolodny, Amatuzio & Dusbabek, L.L.P., C. Michael Montgomery, Brooke H. Woodward, Steven G. Greenlee, Denver, for Petitioners Wayne Harris and Katherine Harris.

Patterson Nuss & Seymour P.C., Franklin D. Patterson, Gregg E. Kay, Englewood, for Petitioners Thomas Klebold and Susan Klebold.

Frank J. Hutfless, Jefferson County Attorney, Lily W. Oeffler, Assistant County Attorney, Writer Mott, Assistant County Attorney, Golden, for Petitioners Theodore B. Mink, III, in his capacity as Sheriff of Jefferson County and Jefferson County Sheriff's Department.

Faegre & Benson LLP, Thomas B. Kelly, Steven D. Zansberg, Denver, for Respondent The Denver Post Corporation.

Colorado District Attorneys' Council, Robert S. Grant, Executive Director, Denver, Mary Lacy, District Attorney, Twentieth Judicial District, William F. Nagel, Assistant District Attorney, Boulder, for Amicus Curiae Colorado District Attorneys' Council.

Baker & Hostetler LLP, Marc D. Flink, Casie D. Collignon, Denver, for Amici Curiae Colorado Press Association and the Colorado Freedom of Information Council.

John W. Suthers, Attorney General, Allison Eid, Solicitor General, Elizabeth H. McCann, Deputy Attorney General, Denver, for Amicus Curiae Colorado Attorney General John W. Suthers.

HOBBS, Justice.

We granted certiorari to review the court of appeals' judgment in Denver Post Corp. v. Cook, 104 P.3d 293 (Colo.App.2004).1 Joined by the Jefferson County Sheriff's Department ("Sheriff"), Wayne and Katherine Harris and Thomas and Susan Klebold ("Harris and Klebold") challenge the appellate court's decision that recordings made by their sons and seized by the Sheriff pursuant to a valid search warrant from their home are public records under Colorado's Open Records Act (CORA), §§ 24-72-201 to -206, C.R.S. (2005). In April of 1999, Eric Harris and Dylan Klebold killed twelve students and a teacher at Columbine High School. They then killed themselves. Referred to as "the basement tapes," these recordings include video and audio tapes evidencing the plotting for and preparation of the murders.

Harris and Klebold and the Sheriff also contend that the recordings cannot be made available for public inspection under Colorado's Criminal Justice Records Act (CCJRA), §§ 24-72-301 to -309, C.R.S. (2005). Agreeing with this contention, the District Court for Jefferson County ruled that the recordings were private property and not criminal justice records, and that the Sheriff could not disclose them under the CCJRA.

In its initial opinion, the court of appeals held that the recordings were subject to the CCJRA. After a petition for rehearing, the court reconsidered and held that the recordings were subject not to the CCJRA but to CORA. We agree with Respondent Denver Post Corporation ("Denver Post") that the records are subject to the CCJRA, not CORA.

Because the Sheriff obtained the recordings pursuant to a search warrant that has not been invalidated, and used them to investigate crimes connected with the Columbine killings, they are criminal justice records under the CCJRA and are subject to the Sheriff's exercise of sound discretion to allow the requested inspection or not, utilizing a balancing test taking into account the relevant public and private interests. We remand this case to the court of appeals with directions for the district court to order the Sheriff to determine under the CCJRA whether or not to allow the Denver Post's inspection request.

I.

In 1999, Eric Harris and Dylan Klebold shot and killed thirteen people and wounded twenty-one others at Columbine High School in Jefferson County, Colorado, before they killed themselves. As part of its investigation into the murders and how they were planned and executed, the Sheriff obtained a search warrant. The Sheriff seized many items of evidence, including the recordings Eric Harris and Dylan Klebold made of their murder preparation.

In 2000, families of victims sought disclosure of the seized evidence. The Sheriff declined, asserting section 24-72-304(1) of the CCJRA prevented disclosure of evidence in the course of an on-going criminal investigation. At that time, the Sheriff was investigating persons who may have assisted Eric Harris and Dylan Klebold in obtaining murder weapons. The victims' families then filed a suit in the trial court under CORA for access to the evidence.

The trial court granted the Harris and Klebold motions to intervene. The Denver Post also intervened, requesting access to evidence seized from the Harris and Klebold homes. At no time after the seizure did Harris and Klebold challenge the legality of the search warrant or the Sheriff's execution of it.

In its conclusions of law, the trial court explained its ruling denying access. It refused the Denver Post's request because the items seized through the warrant were private property and never, at any point, became criminal justice records:

The pending request presents a significant and important legal issue: whether documents obtained by law enforcement agencies by means of a court-ordered search warrant are "criminal justice records" and therefore available for public examination under the Criminal Justice Records Act. . . .
Before examining the statute it is important to realize what the Post is requesting. These records were obtained by the Sheriff's Office under the authority of a search warrant. If records seized pursuant to a search warrant are "criminal justice records," they automatically are available for public inspection by anyone who cares to see them (unless a court finds that one of the limited statutory exceptions applies). This would be true whether or not the records turn out to be relevant to the suspected crime and, indeed, whether or not the owner or possessor of the records is guilty of anything.

The Sheriff returned many of the items seized from the Harris and Klebold homes, but inspection of the recordings was still at issue on the Denver Post's appeal to the court of appeals.

The court of appeals initially ruled that the recordings were not subject to CORA but were subject to the CCJRA, and remanded for the district court to determine whether the Sheriff held the evidence "for use in the exercise of functions required or authorized by law or administrative rule." On petition for rehearing, the appellate court held that the recordings were not criminal justice records; nevertheless, they were public records subject to disclosure under CORA. The court of appeals reasoned, in part, as follows:

Here, there is no dispute that the recordings are the private property of the families and that the Sheriff holds them in its official capacity. There is also no dispute that the recordings were lawfully acquired and were used by the Sheriff in the normal course of its investigation of the Columbine tragedy. Portions of the "basement tapes" were used in the preparation of the sheriff's final report and in the sentencing hearing of the individual convicted of providing weapons to the boys. In addition, while the recordings may be severable from the rest of the investigative files, we conclude that they have become a part of the investigative records "made, maintained, or kept" by the Sheriff.
While there are certainly parallels between the recordings and diaries the boys might have wished to keep private, there are also parallels between them and a self-aggrandizing manifesto the boys might have wished, even ached, to be made public.
We conclude that the recordings are public records subject to the disclosure requirements and limitations of CORA.

Denver Post Corp. v. Cook, 104 P.3d 293, 298 (Colo.App.2004).

Harris, Klebold, and the Sheriff seek reversal of the court of appeals' determination that CORA applies to the recordings. They argue for reinstatement of the trial court's ruling that the recordings are private and not subject to CORA or the CCJRA, that inspection must therefore be denied, and that the recordings be returned to Harris and Klebold. The Denver Post agrees that the court of appeals erred in concluding that the recordings are subject to CORA; instead, it argues that the recordings are subject to the Sheriff's discretion under the CCJRA to allow inspection of the recordings. We agree with the Denver Post.

II.

Because the Sheriff obtained the recordings pursuant to a search warrant that has not been invalidated and used them to investigate crimes connected with the Columbine killings, they are criminal justice records under the CCJRA and are subject to the Sheriff's exercise of sound discretion to allow the requested inspection or not, utilizing a balancing test taking into account the relevant public and private interests.

A. Standard of Review

We review de novo questions of law concerning the correct construction and application of CORA and the CCJRA. Denver Publ'g Co. v. Bd. of County Comm'rs, 121 P.3d 190, 195 (Colo.2005). Our duty is to effectuate the General Assembly's intent, giving all the words of the statutes their intended meaning, harmonizing potentially conflicting provisions, and resolving conflicts and ambiguities in a way that implements the legislature's purpose. Id.

B. CORA and CCJRA Differentiated

We decided the Denver Publishing case after the district court and court of appeals rendered their decisions in the case now before us. Our review of the statutory and legislative history led us to hold in Denver Publishing that the General Assembly in CORA did not intend to include within the definition of a public record the private content of romantic e-mail messages between two public officials. Id., at 205. W...

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