WICK COMMUNIC. CO. v. MONTROSE COUNTY BOARD, 03SA194.

• Decision Date: 15 December 2003
• Docket Number: No. 03SA194.,03SA194.
• Citation: 81 P.3d 360
• Parties: In re WICK COMMUNICATIONS COMPANY, d/b/a The Montrose Daily Press, Plaintiff, v. MONTROSE COUNTY BOARD OF COUNTY COMMISSIONERS and Dennis Hunt, Montrose County Manager.
• Court: Colorado Supreme Court

81 P.3d 360

In re WICK COMMUNICATIONS COMPANY, d/b/a The Montrose Daily Press, Plaintiff, v. MONTROSE COUNTY BOARD OF COUNTY COMMISSIONERS and Dennis Hunt, Montrose County Manager.

No. 03SA194.

Supreme Court of Colorado, En Banc.

December 15, 2003.

Brooks & Brooks, LLC, John A. Brooks, Aaron J. Brooks, Montrose, Colorado, Attorneys for Plaintiff.

Paul C. Sunderland, Grand Junction, Colorado, Attorney for Defendant.

Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

This case comes before us under C.A.R. 21. At the request of the defendant, we issued a rule to show cause why a writ of prohibition should not issue to the district court barring enforcement of the district court's order mandating the defendant to produce his diary to the court for an in camera review. The defendant questions whether the district court is authorized to inspect his diary to determine whether it is a public record under circumstances where the Colorado Public (Open) Records Act (CORA) applies only if the diary is a public record. Because we cannot decide whether the trial court is authorized to order an in camera review without first determining whether CORA applies, we necessarily begin our analysis with a discussion of whether the Act applies. We adopt the federal test for determining whether the federal public records act, the Freedom of Information Act (FOIA) applies: the plaintiff must show that a public entity: (1) improperly; (2) withheld (3) a public record. Additionally, we hold that in cases where it is unclear whether the custodian of the record holds the record in an individual or official capacity, and thus whether the record is private or public, the requesting party must make a threshold showing that the document is likely a public record. We find that the plaintiff in this case could not make the required showing that the defendant's diary is likely a public record. Consequently, we find that CORA does not apply and therefore the trial court did not have authority to order an in camera review.

II. Facts and Procedure

After the Montrose County Manager, Dennis Hunt, fired Montrose County's former airport manager, David Miller, Miller requested a review of his termination with the Board of County Commissioners. In preparation for that hearing, Hunt wrote an outline of events that he had considered in his decision to fire Miller. Although it is unclear from the incomplete record before us, it appears that the outline included edited transcriptions of excerpts from Hunt's diary. This outline was made available to the Daily Press. Hunt did not produce the diary itself.

After the hearing, the Montrose Daily Press requested, under CORA, photocopies of "any and all pages from the diary ... discussed and used during a public grievance hearing for former Montrose Regional Airport Manager Dave Miller." The Daily Press's first request was made to the Montrose County Clerk and Recorder's office. In response, the County Clerk and Recorder stated that she did not have custody or control of the requested records and referred the Daily Press to Hunt. Hunt also responded, thus acting before the Daily Press made an official request to him, stating that he did not believe his diary to be a public record. Nonetheless, Hunt offered to have pages relating to Miller copied by a neutral third party and given to the Daily Press. Hunt conditioned this offer on obtaining a satisfactory release from Miller that Miller would not take action against Hunt for releasing the records. The Daily Press rejected Hunt's offer, maintaining that the diary was a public record subject to disclosure.

The Montrose Daily Press then sued Montrose County and Hunt, in both his official and individual capacities, for disclosure of Hunt's personal diary. Montrose County and Hunt responded that the diary is not a public record under the Act. Consequently, they moved to dismiss for lack of subject matter jurisdiction, arguing that the court did not have jurisdiction to compel disclosure of a private record.

The trial court dismissed the claims against the County and Hunt individually. However, the trial court ruled that in order to decide whether the diary is a public record, it would need to conduct an in camera review. The trial court thus ordered Hunt, in his official capacity, to produce his personal diary.

Faced with the decision of disclosing the entire contents of his personal diary or risking citations for contempt and prosecution, Hunt petitioned this court for a rule to show cause why a writ of prohibition should not issue to the trial court, barring enforcement of the court's order of production. We issued a rule to show cause. Because we find that CORA does not apply to a private diary, and therefore that the trial court exceeded its authority by issuing its order, we now make the rule absolute.

III. Analysis

We decide that in order to show that CORA applies, the plaintiff must show that a public entity: (1) improperly; (2) withheld; (3) a public record. In a case such as this one, where the disagreement centers on whether the requested document is a public record, we hold that the court must make an initial determination of whether the document is likely a public record. In the unique situation where the parties dispute whether a requested document is public or private, and there exists the question of whether the custodian holds it in a personal or official capacity, we place the initial burden on the requesting party to make a threshold showing that the document is likely a public record. If the plaintiff makes that initial offer of proof, then the burden shifts to the custodian of the document to demonstrate the contrary.

We find that the Montrose Daily Press did not meet the required threshold of proof that a private diary was likely a public record. We therefore hold that CORA does not apply to the defendant's diary and consequently the trial court may not conduct an in camera review of the diary.

A. Determining Whether CORA Applies

A trial court cannot allow a suit to proceed under CORA without first determining that the Act applies. We have not previously discussed the necessary prerequisites for the provisions of CORA to apply. Under the federal equivalent to CORA, the Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B) (2000), application of FOIA is dependent on a showing that an agency: (1) improperly; (2) withheld; (3) agency records.¹Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). Although Colorado's statute is not identical to its federal counterpart, it also allows for a complainant to apply to the district court for relief when access to a record is denied.² § 24-72-204(5), 7B C.R.S. (2003). Therefore, though our statutory language differs, the intent is the same: an agency cannot improperly withhold agency records, and if it does so, the courts are empowered to remedy the situation.

As we find that the federal test for the application of FOIA is consistent with CORA's goals, we adopt it now. Thus, in order to show that CORA applies, a plaintiff must show that the public entity in question: (1) improperly; (2) withheld; (3) a public record. All three of these prongs must be shown or the Act will not apply.

B. Challenge to CORA's Application

In the present case, the dispute over CORA's application centers on the third prong of the test: whether the requested record is a public record.³ To decide whether a requested document is a public record, we must look at several sub-issues. First, we decide who has the burden of proof to show whether the diary is a public record. Second, we determine the degree of protection appropriate for private writings in a public records case, balancing the goal of open government with considerations of individual privacy. Finally, we apply our analysis to the facts of this case. We hold that when a public records request is made for an arguably private document held by a public official, the requesting party must show that the document is likely a public record in order to show that CORA applies.

1. Challenge to CORA's Application: Burden of Proof

Generally, the plaintiff has the burden to present facts to establish a claim under a particular act. However, under FOIA, the U.S. Supreme Court has held that the custodian of a record has the burden to show that the record is not an agency (public) record. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). Therefore, even though the plaintiff has the burden of proof to show that CORA applies, when the parties dispute whether a document fits within the definition of a public record, in most cases the burden will fall on the custodian to show that the record is not a public record.

Ordinarily, we agree with the U.S. Supreme Court that placing the burden of proof on the custodian of the record makes sense. In most cases, the custodian of a requested public record is a public entity. If a party requests a document that the public entity believes to be outside of the provisions of CORA, either because the public entity thinks it is not a public record as defined by CORA, or because it falls under one of the public record exceptions, the public entity is in the best place to demonstrate why CORA does not apply. This rule is consistent with both the public policy behind CORA, which favors disclosure, and the common sense notion that the burden should be on the party with the information necessary to explain why CORA does not apply to the requested document. See §§ 24-72-201, 204(6)(a), 7B C.R.S. (2003) (public records are to be open for inspection) (burden on custodian to show that disclosure would do substantial injury to the public interest).

Nonetheless, the rationale for requiring the custodian to show that a document is not a public record does not extend to a situation where the custodian is...