Open Records. Prior to enactment of the Colorado Public Records law in 1969, access to public records in Colorado was largely a matter of discretion of the custodian, except in cases where records were specifically made confidential by statute. This was even true of court records. See Times-Call Publ'g Co. Inc. v. Wingfield, 159 Colo. 172, 410 P.2d 511 (1966).
The Colorado Public Records law was inspired by and patterned after the federal Freedom of Information Act as originally enacted, before the 1974 amendments. See Denver Post Corp. v. University of Colorado, 739 P.2d 874 (1987). The Open Records Act contains a broad legislative declaration that all public records shall be open for inspection unless otherwise specifically provided by law. Colo. Rev. Stat. § 24-72-201. Consonant with this mandate, the Colorado Supreme Court has held that a public official has no authority to deny any person access to a public record unless there is a specific statute permitting the withholding of the information requested. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). In several particulars, the Colorado General Assembly determined to achieve the general policy of the Public Records Law differently than did Congress in the federal Freedom of Information Act. See Colorado Legislative Council Research Publication No. 126, Open Records for Colorado (1967). For example, the Colorado statutory scheme provides that all "personnel" files are exempt from disclosure regardless of whether they would cause an invasion of an individual's privacy. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). In addition, most of the exemptions that parallel those of the Federal FOIA are not simply exempted from the disclosure requirements, but nondisclosure is mandatory. Id. at 204(3)(a). This gives parties who are the subject of information sought the right to challenge a request for disclosure of the information, which is not the case under the federal act. See Freedom Newspapers Inc. v. City of Colorado Springs, 739 P.2d 881 (Colo. App. 1987); CFI Steel Corp. v. Office of Air Pollution Control, 77 P.3d 933 (Colo. App. 2003).
The statute was amended in 1977 by the Criminal Justice Records Act, which dealt with all law enforcement investigative records and all court records in criminal prosecutions under separate legislation. Colo. Rev. Stat. §§ 24-72-301, et seq. This legislation gives criminal justice agencies, including courts and law enforcement agencies, discretion to withhold all criminal justice information other than records of official action, such as records of arrest, detention, charging, conviction, etc. The latter records are required to be maintained and available for public inspection, but even these records are subject to limited access orders or expungement after certain periods of time. In 1988, the Criminal Justice Records Act was amended to simplify the grounds and procedure for sealing of criminal justice records, but continues the requirement that records of official action be open unless they are ordered sealed.
Open Meetings. Colorado's open meetings law, known as the "Sunshine Law," was enacted by the people pursuant to a referendum held in 1972. Colo. Rev. Stat. §§ 24-6-401, et seq. The Sunshine Law was modeled after the Florida Government in the Sunshine Law. As initially enacted, this statute applied only to the General Assembly and "state agencies," i.e., agencies having statewide jurisdiction. The Sunshine Law has been liberally construed in favor of openness and to permit non-public sessions only in relatively narrowly defined circumstances. All discussions not falling within these "executive session" categories must be held in public, and in any event the discussion leading to the final decision must occur in public. See Cole v. State, 673 P.2d 345 (Colo. 1983).
A second statutory scheme (referred to herein as the "local government open meetings law") formerly applied to cities, counties and political subdivisions not having statewide jurisdiction. See Colo. Rev. Stat. § 29-9-101 (Repealed 1991). This statute provided that "all meetings" of local governmental agencies shall be held in public, but permitted executive sessions for determination of negotiation strategy, and "for consideration of documents or testimony given in confidence." The courts gave this statute a less than liberal construction, and held that executive sessions were appropriate for "deliberations" without limitation as to subject matter, so long as final decisions were made in public. See Hudspeth v. Board of County Comm'rs, 667 P.2d 775 (Colo. App. 1983); see also Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986).
In 1991, the Colorado General Assembly enacted S.B. 91-33, which amended the Sunshine Law to apply to local governments as well as state agencies, thereby eliminating the two-tier system of open meetings laws. However, the amended statute still maintains different presumptions of openness and different particular provisions applicable to state and local public bodies.
"Any person" may inspect any public record at reasonable times. Colo. Rev. Stat. §§ 24-72-201, 24-72-203(1)(a). "Person" is defined as any natural person, including any public employee and any elected or appointed public official acting in an official or personal capacity, and any corporation, limited liability company, partnership, firm, or association. Colo. Rev. Stat. § 24-72-202(3).
Copying of records is subject to federal copyright and trademark laws. The state and its agencies, institutions, and political subdivisions may maintain an action to obtain and enforce copyright or trademark protection under federal law. Colo. Rev. Stat. § 24-72-203(4). This authorization, however, is not intended to restrict public access to fair use of copyrighted materials, see 17 U.S.C. § 107, and does not apply to writings which are merely lists or other compilations.
The "person in interest," the person who is the subject of a record, may have greater rights of access to records about that person than do others. See Colo. Rev. Stat. §§ 24-72-204(2)(a)(II), (3).
Because all non-exempt public records are declared to be available for public inspection and copying, the purpose of the person requesting the records does not affect the right to inspect public records. Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996).
The Open Records Act does not restrict any subsequent use of the records provided or of information contained in them. However, requesters of access to criminal justice records must certify that they do not intend to use the records for solicitation of business for pecuniary gain. Colo. Rev. Stat. § 24-72-305.5.
"State" Records in General. "Public Records" are defined to include records "made, maintained, or kept by the state or any agency, institution, a nonprofit corporation incorporated pursuant to Colo. Rev. Stat. § 23-5-121(2), or political subdivision of the state, or that are described in Colo. Rev. Stat. § 29-1-902, and held by any local government-financed entity." Colo. Rev. Stat. § 24-72-202(6). The broad scope of this definition includes all agencies of the executive branch and legislative bodies.
"Political subdivisions" to which the Open Records Act applies include every county, city, town, school district, special district, public highway authority, rural transportation authority, and housing authority within the State of Colorado. Colo. Rev. Stat. § 24-72-202(5). The definition of "political subdivision" is to be liberally construed, and includes the State Compensation Insurance Authority, the state workers' compensation insurance fund. Dawson v. State Compensation Ins. Auth., 811 P.2d 408 (Colo. App. 1990).
The Act also applies to any "agency or instrumentality" of a political subdivision. Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998). The Act also applies to a non-profit corporation established by a governmental body to perform governmental functions with public funds and subject to governmental oversight, supervision, or control. Denver Post v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).
The Act applies to every state institution of higher education and the respective governing boards. The University of Colorado and its regents are specifically included as a state "institution" to which the Act applies. Colo. Rev. Stat. § 24-72-202(1.5).
The act also applies to "institutionally related foundations," including health care foundations and real estate foundations. Colo. Rev. Stat. §§ 24-72-202(1.6), (1.8), (1.9). An institutionally related foundation is a nonprofit corporation, institute or similar entity that is organized for the benefit of an institution, and whose principal purpose is receiving private donations to be used for the benefit of that institution. Colo. Rev. Stat. §§ 24-72-202(1.6). "Public records" for such a foundation include all writings relating to the requests for disbursement or expenditure of funds. Colo. Rev. Stat. § 24-72-202(6)(a)(IV).
The Act applies to members of the Executive Branch.
All executives' records, as defined by the statute, are subject to the Act.
All records that are "made, maintained, or kept" by an executive officer or the executive branch agency "for use in the exercise of functions required or authorized by law or administrative rule or involving the expenditure of public funds" are covered by the Act.
Governor did not make, maintain or keep personal cell phone billing statements in his official capacity. Denver Post Corp. v. Ritter, 207 P.3d 954 (Colo. 2009). While governor made the telephone calls, the telephone service provider created and generated the phone bills. Id. at 1242. Governor did not maintain the records as they were kept solely to pay the bills and there was no evidence that the governor was responsible for updating the records. The term maintain, at the least means to "keep up or keep in good repair." Finally, it was stipulated that the governor kept the bills only to verify the amounts he owed and to pay them, which the court deemed is a personal, rather than official, function.
The records of the General Assembly are covered by the Act.
Not all court records are covered by the Act. See Office of State Court Administrator v. Background Info. Sys., 994 P.2d 420 (Colo. 1999). Absent statutory mandate dealing with particular court records, courts themselves retain authority over the dissemination of court records. Id. at 432. Examples of documents that must be made public under the Act include court registry of actions, judgment records, and records of official actions in criminal cases. Id. at 429. Criminal case files are subject to disclosure under the Criminal Justice Records Act. Id. See also Chief Justice Directive 2001-05-01. Non-case records of the judicial branch are not "public records" subject to CORA. Gleason v. Judicial Watch, 292 P.3d 1044 (Colo. App. 2012).
Bodies receiving public funds or benefits may be covered by the Act. See Denver Post v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).
Bodies whose members include governmental officials may be covered by the Act. See Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976).
No cases or statutory language specifically address this question.
See Denver Post v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).
Pursuant to House Bill 1041 (2004), fundraising and expenditure records of the University of Colorado Foundation are subject to public inspection.
(1) "Public Records" Defined.
"Public records" subject to the Act are defined by Colo. Rev. Stat. § 24-72-202(6)(a)(I) generally to include all records made, maintained, or kept by the state or by any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5-121(2), C.R.S., or political subdivision of the state (including cities, towns, and counties), or that are set forth in Colo. Rev. Stat. § 29-1-902, and held by any local government-financed entity:
For use in the exercise of functions required or authorized by law or administrative rule; or
Involving the receipt or expenditure of public funds.
A record not made, maintained or kept by a government actor in his official capacity is not a public record. Wick Commc'ns v. Montrose Cty. Bd. of Cty. Comm'rs, 81 P.3d 360 (Colo. 2003) (County manager's private diary was held not a public record); Denver Publ'g Co. v. Bd. of Cty. Comm'rs for Arapahoe Cty., 121 P.3d 190 (Colo. 2005) (sexually explicit text messages exchanged during work hours, on government provided paging devices, are not "public records" because their content does not discuss any official government activity).
(2) A person may request copies, printout, or photographs of any public record that the Act grants the right to inspect. Colo. Rev. Stat. § 24-72-205(1).
(3) "Public records" subject to the Act include "writings," which is defined by Colo. Rev. Stat. § 24-72-202(7) as meaning and including "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics." "Writings" also includes digitally stored data, including electronic mail messages. Id. However, computer software is specifically excluded from the definition of "writings" in Colo. Rev. Stat. § 24-72-202(7).
(4) "Public records" also includes the "correspondence" of elected officials, Colo. Rev. Stat. § 24-72-202(6)(a)(II), which is defined by Colo. Rev. Stat. § 24-72-202(1) as a communication sent or received by one or more specifically identified individuals and that is or can be produced in written form, including communications sent via U.S. mail, private courier, and electronic mail. However, "public records" does not include correspondence that is:
Work product, as defined in Colo. Rev. Stat. § 24-72-202(6.5);
Without a demonstrable connection to the exercise of functions authorized by law and does not involve the receipt or expenditure of public funds; or
A communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or a communication from the elected official in response to such a communication from a constituent. Colo. Rev. Stat. § 24-72-202(6)(a)(II).
(5) In addition, the following records are expressly designated as public records by statute:
Under Colo. Rev. Stat. § 24-6-202, a written disclosure statement must be filed with the Secretary of State within 30 days after their election or appointment by all legislators, the Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, judges, district attorneys, members of the State Board of Education, Regents of the University of Colorado, and members of the Public Utility Commission.
Disclosure is to include sources of income, investments over $5,000, real estate, offices and directorships, lobbyists, creditors to whom is owed $1,000 or more, and state-regulated businesses with which the official is associated.
The disclosure is also to include the same information for the official's spouse and minor children.
Each disclosure statement is public information, available to any person upon request during normal working hours. Colo. Rev. Stat. § 24-6-202(5).
Income tax returns filed with or in lieu of disclosure statements are also public information under Colo. Rev. Stat. § 24-6-202(6).
Under Colo. Rev. Stat. § 24-6-302, all registered professional lobbyists and firms organized for professional lobbying purposes that employ such lobbyists must file a disclosure statement with the Secretary of State that contains information about all contributions received by and spent by lobbyists, gift or entertainment expenditures, names of persons who have received contributions, and other specific information required by Colo. Rev. Stat. § 24-6-301(1.9).
Lobbyists' disclosure statements are public records of the Secretary of State, and shall be open and readily accessible for public inspection. Colo. Rev. Stat. § 24-6-304(2).
Reports of the State Auditor shall be open to public inspection except for portions of any report containing recommendations, comments, and any narrative statements, which are released only upon a majority vote of the audit committee. Colo. Rev. Stat. § 2-3-103(2).
Work papers of the State Auditor shall be open to public inspection only upon majority approval of the audit committee. Work papers are not open to public inspection until the completed report has been filed with the committee. Colo. Rev. Stat. § 2-3-103(3).
The keeper of the county jail is to keep daily records of the commitment and discharge of all persons delivered to his custody, including date of entrance, name, offense, sentence, fine, age, sex, citizenship, and times and conditions of commitment and discharge. The record shall be open to inspection by the public at all reasonable hours. Colo. Rev. Stat. § 17-26-118.
All books and records required to be in the offices of the County Sheriff, clerk and recorder, treasurer, and clerk of the district and county courts are generally open to examination by any person. Colo. Rev. Stat. § 30-10-101(1). Any officer having the custody of such books and records may make "reasonable and general regulations" concerning their inspection by the public. Colo. Rev. Stat. § 30-10-101(2).
The judgment record and register of actions in all courts are declared open to public inspection during office hours by Colo. Rev. Stat. § 13-1-119. This statute provides that this information may also be presented on microfilm or computer terminal.
Pursuant to Colorado Supreme Court Chief Justice Directive 05-01, all books, records, pleadings, filings, documents, indexes, calendars, orders, judgments, decrees, minutes, registers of action, and any other materials in any court that are not declared to be private or confidential by statute or specific order shall be open to the public for reasonable inspection at reasonable times during business hours. The general policy is that court materials are open to the public unless they are closed for specific reasons by specific court order.
Although persons other than parties in interest and their attorneys may examine pleadings and other papers filed in actions pending before any court, they may do so at the discretion of the court. Times-Call Publ'g Co. v. Wingfield, 159 Colo. 172, 410 P.2d 611 (1966); see Colo. Rev. Stat. § 30-10-101(1). The Times-Call case holds that a statute that on its face limits the right of access to certain classes of persons, but does not expressly include access to others will, because of First Amendment considerations, be construed to confer discretion to permit access to the media. Moreover, where the subject matter of the action is of public interest, refusal to allow inspection is an abuse of discretion. Id. However in 2018, the Colorado Supreme Court held there is no First Amendment right of access to judicial records. People v. Owens, 420 P.3d 257 (Colo. 2018).
Records in civil cases may be sealed for privacy or similar reasons. Colo. R. Civ. P. 121, § 1-5.
In Office of State Court Administrator v. Background Info. Sys., 994 P.2d 420 (Colo. 1999), the Supreme Court upheld its own directive prohibiting disclosure of digitized court records in bulk (computerized data).
Records of the county clerk and recorder pertaining to interests in real property are public records under Colo. Rev. Stat. § 30-10-101(1). However, under Colo. Rev. Stat. § 30-10-101(2), the clerk may make "reasonable and general regulations" concerning the inspection of such books and papers by the public.
Torrens Titles. Records of titles to real property registered under the Torrens Title Registration Act in the office of the registrar of titles are public records. Colo. Rev. Stat. § 38-36-150.
Chiropractors. Records of the proceedings of the State Chiropractic Board and the register of all applications for licensing and all licensed chiropractors are declared to be public records under Colo. Rev. Stat. § 12-33-110.
Dentists. Records by the State Dental Board of all persons to whom dental licenses and license renewal certificates have been granted, and the numbers and dates of granting are declared by Colo. Rev. Stat. § 12-35-120 to be public records open to public inspection during ordinary hours.
Psychologists. Records by the grievance board of the names, addresses, educational qualifications, disclosure statements, therapeutic orientations or methodologies, and years of experience in each specialty area of all person practicing psychotherapy in the state are open to public inspection under Colo. Rev. Stat. § 12-43-220(1).
Real Estate Commission. Records of real estate licenses, investigations, and proceedings of the Real Estate commission kept in its office or in the Department of Regulatory Agencies are open to public inspection under Colo. Rev. Stat. § 12-61-112(1).
Records of the Department of Revenue pertaining to motor vehicle registrations, licenses and permits are declared to be confidential, consistent with the federal Driver's Privacy Protection Act of 1994 (18 U.S.C. § 2721, et seq.). Such records may be obtained by various parties in connection with motor vehicle matters, debt collection, litigation, or "research activities . . . so long as the personal information is not published, redisclosed, or used to contact the parties in interest." Colo. Rev. Stat. § 24-72-204(7) (2004).
Accident reports made by sheriffs, police, coroners, or law enforcement officers are public records under Colo. Rev. Stat. § 42-4-1610; 42-1-206. Accident reports made by any person involved in an accident, however, are declared confidential by Colo. Rev. Stat. § 42-4-1610. Clark v. Reichman, 130 Colo. 329, 275 P.2d 952 (1954).
Mobile home titles are public records under Colo. Rev. Stat. § 42-6-141.
All certificates of designation, petitions, certificates of nomination, acceptances, declinations, and withdrawals filed in connection with public elections are declared public records by Colo. Rev. Stat. § 1-4-504.
Election ballots are also subject to inspection under the conditions specified in the Act. Colo. Rev. Stat. § 24-72-205.5.
Voter registration books in the custody of the county clerk and recorder are declared to be public records subject to examination during office hours under Colo. Rev. Stat. § 1-2-227.
Records of the Division of Correctional Industries, including accounts of all monies received by and disbursed on its behalf, are public records open to inspection under Colo. Rev. Stat. § 17-24-107.
The minutes of a meeting of any state board, committee, commission or other policy-making or rule-making body shall be open to public inspection under Colo. Rev. Stat. § 24-6-402(d)(I).
(6) Criminal Records.
Criminal justice records are the subject of a separate part of the Open Records Act, Colo. Rev. Stat. §§ 24-72-301, et seq. Records of official actions of criminal justice agencies are declared open to inspection by any person by Colo. Rev. Stat. § 24-72-303; all other records of criminal justice agencies are open for inspection but subject to withholding at the discretion of the records custodian upon a determination that disclosure would be "contrary to the public interest."
Records of Official Actions. Records of "official actions" include records of any arrests, indictments, releases from custody, parole decisions, sentencing decisions, and dispositions of cases. Colo. Rev. Stat. § 24-72-302(7).
Other Records. All criminal justice records other than records of official actions are open to inspection by any person at reasonable times at the discretion of the official custodian. Colo. Rev. Stat. § 24-72-304(1).
Disclosure contrary to statute or court rule or order. Colo. Rev. Stat. § 24-72-305(1).
Disclosure "contrary to public interest." The custodian may deny access to records of investigations, intelligence information, or security procedures of any sheriff, district attorney, police, or other law enforcement agency. Colo. Rev. Stat. § 24-72-305(5). See Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972) (holding under former law that some official action records may not be available, overruling § 24-72-303).
Where the police have a legitimate interest in avoiding disclosure of potential criminal conduct not ripe for prosecution, full access may be denied to police intelligence information, including taped recordings of an informant's statements that mentioned the petitioner's name. Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).
Solicitation of Business. Criminal justice records and records of official actions are not to be used for the purpose of soliciting business for pecuniary gain. The custodian shall deny access to records unless the person making the request signs a statement affirming that the records will not be used to solicit business. Colo. Rev. Stat. § 24-72-305.5. See Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir. 1994) (Colo. Rev. Stat. § 24-72-305.5, although a content-based restriction on commercial speech under the First Amendment, is valid under the Central Hudson framework.)
The applicant can request a written statement from the custodian of the grounds for the denial of access. The statement must be provided within 72 hours and must cite the law or regulation under which access is denied or the general nature of the public interest protected. Colo. Rev. Stat. § 24-72-305(6).
The person denied access can also apply to the district court for an order directing the custodian to show cause why inspection of the record should not be allowed. The court can order the custodian to permit inspection if denial was improper, and may also award the applicant court costs, attorney fees, and a $25 per day penalty if the denial was arbitrary and capricious. Colo. Rev. Stat. § 24-72-305(7).
iii. Types of Records. "Criminal justice records" subject to inspection include books, papers, cards, photographs, tapes, recordings, and other documentary materials made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule. Colo. Rev. Stat. § 24-72-302(4). Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).
Sexual Assault Victims. The name of any victim of a sexual assault or alleged sexual assault is to be deleted from any criminal justice record prior to its release to any individual or agency other than a criminal justice agency when such record bears the notation "SEXUAL ASSAULT" as prescribed in Colo. Rev. Stat. § 24-72-304(4).
Authors of Correspondence. The court may order sealed any information in a criminal justice record, including basic identification information, to protect the author of any correspondence contained in the record. Colo. Rev. Stat. § 24-72-308(1.5).
Applicants in Regulated Professions or Occupations. Any division, board, commission, or person responsible for the licensing, certification, or registration functions for any governmental entity, in addition to any other authority conferred by law, may use fingerprints to access, for comparison purposes, arrest history records of any licensee, registrant, or person certified to practice a profession or occupation or applicant thereof, or any employee or prospective employee of a licensee, registrant, or person certified to practice an occupation or profession. Colo. Rev. Stat. § 24-72-305.4(1).
Criminal records may be sealed by court order upon the petition of a person in interest upon a finding that harm to the person's privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records. Colo. Rev. Stat. § 24-72-308(1)(c). See R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004); People v. Bushu, 876 P.2d 106 (Colo. App. 1994); D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).
Records pertaining to traffic infractions and convictions for driving under the influence of alcohol or drugs and convictions for offenses involving unlawful sexual behavior may not be sealed. Colo. Rev. Stat. § 24-72-308(3).
Basic identification information is not subject to an order to seal records. Colo. Rev. Stat. § 24-72-308(1). This includes the name, place and date of birth, last known address, Social Security number, occupation and address of employment, physical description, photograph, handwritten signature, sex, fingerprints, and any known aliases of any person. Colo. Rev. Stat. § 24-72-302(2).
Upon an order to seal records, they are deemed not to exist, and the person who is the subject of the records may lawfully deny the criminal record. Colo. Rev. Stat. §§ 24-72-308(1)(d) and 24-72-308(1)(f). See D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).
After records have been sealed, inspection may be permitted by the court only upon the petition of the person who is the subject of the records or by the prosecutor, and only for reasons identified in the petition. Colo. Rev. Stat. § 24-72-308(1)(e).
In general, if a person is not charged, is acquitted or the charges are dismissed, the arrest and criminal information records of that person may be sealed upon the petition of the person in interest. Colo. Rev. Stat. § 24-72-308(1)(a)(I). See People v. D.K.B., 843 P.2d 1326 (Colo. 1993) (convicted persons may not have records sealed). However, arrest and criminal records information may not be sealed if an offense is not charged due to a plea agreement in a separate case, or a dismissal occurs as part of a plea agreement in a separate case. Colo. Rev. Stat. § 24-72-308(1)(a)(II).
vii. Electronic Mail.
The status of electronic mail as a public record is addressed in Colo. Rev. Stat. § 24-72-204.5. See Vol. 25 No. 10 Colorado Lawyer p. 99 (Oct. 1996).
Every state or agency, institution, or political subdivision thereof that maintains an electronic mail communications system is required to have adopted a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted. Colo. Rev. Stat. § 24-72-204.5(1).
The policy shall include a statement that correspondence in the form of electronic mail may be a public record under the public records law and may be subject to public inspection under Colo. Rev. Stat. § 24-72-203. Colo. Rev. Stat. § 24-72-204.5(2).
"Electronic mail" is defined by Colo. Rev. Stat. § 24-72-202(1.2) as an electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network. However, electronic mail whose content does not bear a demonstrable connection to discharge of public functions or to the receipt or expenditure of public funds is not a public record. Denver Publ'g Co. v. Board of Cty. Comm'rs for Arapahoe Cty., 121 P.3d 190 (Colo. 2005).
See previous subsection (defining "electronic mail"). The statute defines "public records" as "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics." Furthermore, "writings" include "digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7).
No. However, the Attorney General's Office in 2001 issued a formal opinion stating that public records that are subject to copyright protection can be made available for inspection and copying.
Although call logs of calls paid for by the government are public records, the phone logs of the governor, connected to a "private" cell phone which he paid for, are not. Ritter v. Denver Post. Corp., 255 P.3d 1083 (Colo. 2011).
Records maintained in electronic or digital format are declared to be "public records." Colo. Rev. Stat. § 24-72-202(7).
Yes. In 2017, the General Assembly enacted legislation specifying how custodians must produce records stored in a digital format. Specifically, the legislation provides that if a public record is stored in a digital format that (I) is neither searchable nor sortable, the custodian shall provide a copy of the public record in a digital format; (II) is searchable but not sortable, the custodian shall provide a copy of the public record in a searchable format; and (III) is sortable, the custodian shall provide a copy of the public record in a sortable format. Colo. Rev. Stat. § 24-72-203(3.5)(a) (2017). The custodian is not required to produce the record in searchable or sortable format if doing so would violate terms of an copyright or licensing agreement; it is not technologically or practically feasible to permanently remove information that the custodian is required or allowed to withhold in the requested format; or the custodian would be required to purchase software or create additional programming or functionality in its existing software to remove the information. Colo. Rev. Stat § 24-72-203(3.5)(b) (2017). If the custodian cannot comply with a request to produce a public record in the specified format, the custodian shall produce the record in an alternate format or issue a denial with a written declaration attesting to the reasons the custodian is not able to produce the record in the requested format. If a court subsequently rules the custodian should have provided the record in the requested format, attorneys’ fees may be awarded only if the custodian’s action was arbitrary and capricious. Colo. Rev. Stat. § 24-72-203(3.5)(c) (2017).
Yes, however if the state or any of its agencies, institutions, or political subdivisions has performed a manipulation of data, so as to generate a record in a form not used by the state or by said agency, institution or political subdivision, a reasonable fee may be charged to the person making the request. Colo. Rev. Stat. § 24-72-205(3).
No. Public records are defined as including all "writings" which are further defined as meaning and including "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics." Furthermore, "writings" include "digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7).
Software is not a public record. Public records includes all writings, but writings is defined as "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics. 'Writings' includes digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7). Metadata may be public since it likely constitutes "digitally stored data." Colo. Rev. Stat. § 24-72-202(7).
Costs of copies are to be determined in accordance with the Act, which provides that custodian may not charge a fee exceeding $0.25 per page for any standard sized page, and a fee not to exceed actual costs of providing a copy for other sized pages. Colo. Rev. Stat. § 24-72-205(1), (5)(a) (2007). However, an institution that is the custodian of scholastic achievement data on an individual person may charge a “reasonable” fee for a certified transcript of the data. Colo. Rev. Stat. § 24-72-205(5)(b) (2007). In practice, costs of copies depend upon the agency.
Custodians may charge $30/hour (after the first hour of free service) for research and retrieval of public records. Colo. Rev. Stat. § 24-72-205(6)(a). However, to be authorized to charge such fees, the custodian must have posted a written fee schedule as of the date the records request was submitted. Id.
No transmission fee may be charged to the record requester for transmitting public records via e-mail. Colo. Rev. Stat. § 24-72-205(1)(b) (2013).
See subsection 1 above. Where records are in the custody of the Secretary of State, costs of copies are governed by Colo. Rev. Stat. § 24-21-104(3). No statutory fee is set.
Only "nominal" fees may be charged for search and retrieval. Black v. Southwestern Water Conservation Dist., 74 P.3d 462 (Colo. App. 2003).
Data Compilations. If, in response to a specific request, data available from public records has been manipulated so as to generate a record in a form not used by the governmental agency, a reasonable fee, not to exceed the actual cost of manipulating the date and generating the record, may be charged to the application. Colo. Rev. Stat. § 24-72-205(3).
Computer Records. Costs of copies of public records kept only in digitized or electronic form that are the result of computer output (other than word processing) may be based on actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system. This fee may be waived or reduced by the custodian if the electronic services and products are to be used for a public purpose, including public agency program support, nonprofit activities, journalism, and academic research. Colo. Rev. Stat. § 24-72-205(4).
Costs of copies are not to exceed $0.25 per page for a standard sized page and not to exceed actual costs for other sized pages. Colo. Rev. Stat. §§ 24-72-205(1), (5). In practice, costs of copies depend upon the agency.
If practical, copies are to be made in the place where records are kept. If other facilities are necessary, the cost of providing them is to be paid by the person desiring a copy of the records. Colo. Rev. Stat. § 24-72-205(2).
The custodian of records may charge the same fee for the services rendered by him or a deputy in supervising the copying as may be charged for the copies. Colo. Rev. Stat. § 24-72-205(2).
Custodians of records in the form of computer output (other than word processing) have discretion to reduce or waive the fees associated with producing such records, upon request, if the electronic services and products are to be used for a public purpose, including journalism, non-profit activities and academic research. Colo. Rev. Stat. § 24-72-205(4).
Yes, especially with respect to database files, e-mail archives, or other digital or electronic records.
None. But see Attorney General Opinion No. 01-01 "Colorado Open Records Act: Nineteen Frequently Asked Questions" available at http://www.ago.state.co.us/AGO/AGO01/ago01-1.htm.
Generally, there are no sanctions for noncompliance with the public records act. However, a willful and knowing violation of the Criminal Justice Records Act, which generally provides for public access to criminal justice records, is a misdemeanor, punishable by a fine of not more than one hundred dollars, imprisonment in the county jail for not more than 90 days, or both. Colo. Rev. Stat. § 24-72-309.
A custodian may impose a fee in response to a request for the research and retrieval of public records only if the custodian has, prior to the date of receiving the request, either posted on the custodian’s web site or otherwise published a written policy that specified the applicable conditions concerning the research and retrieval of public records by the custodian, including the amount of the current fee. Colo. Rev. Stat. § 24-72-205(6)(a) (2014).
In the absence of a specific statute or court rule permitting information to be withheld, a public official has no authority to deny any person access to public records. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). Exemptions are patterned after the federal Freedom of Information Act, but there are discrepancies.
Public records not subject to the act
(1) The following records are specifically exempt from disclosure under the Act, except that such records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest.
This does not include coroners’ autopsy reports.
Nor does it include group scholastic data from which the individual cannot be identified. See Sargent School Dist. No. RE-33J v. Western Services Inc., 751 P.2d 56 (Colo. 1988). However, individual scholastic data may not be disclosed under the Open Records Act even if the individuals’ names have been deleted. Id. The schools have no implied duty to convert individual scholastic data into group scholastic data documents.
"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), means and includes home addresses, telephone numbers, financial information, and other [similarly private] information maintained because of the employer-employee relationship, including other documents specifically exempt from disclosure by law. Only information that is akin to an employee’s home address, telephone number and personal financial information is properly classified as “personnel file.” Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).
"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. Because employment applications are public records, an applicant cannot waive the right to information concerning denial of an application for employment. Carpenter v. Civil Service Commission, 813 P.2d 773 (Colo. App. 1990).
Employment records concerning the terms of employment and compensation of employees, including agreements made in settlement of disputed claims, are public records. Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo. App. 1990; Freedom Colo. Info. Inc. v. City of Colo. Springs, 37 Med.L.Rptr. (BNA) 1639 (Ct. App. Feb. 26, 2009) (requiring disclosure of employment agreements for two heart-lung surgeons on staff at public hospital); See Colo. Rev. Stat. § 24-72-204(3)(a)(II)(B).
Records of an employee’s absence from the workplace are public records, including the reason given for the absence. Jefferson Cty. Educ. Assoc. v. Jefferson Cty. Sch. Dist., 378 P.3d 835, 839 (Colo. App. 2016) (requiring disclosure of records showing names of high-school teachers who reported in sick on particular days).
Only documents that are actually present in an employee’s personnel file are exempt from disclosure under the Act. Denver Post v. Univ. of Colo., 739 P.2d 874, 878 (Colo. App. 1987). A public employer cannot restrict access to documents that are otherwise subject public records merely by placing them in an employee’s personnel file; such records must implicate an employee’s personal privacy to qualify as a “personnel record.” Denver Publ'g Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).
Personnel files are available to the person in interest and to duly elected and appointed public officials who supervise the employee’s work. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). See Ornelas v. Dep't of Institutions, 804 P.2d 235 (Colo. App. 1990).
Any records of sexual harassment complaints and investigations that are maintained pursuant to any rule of the general assembly on a sexual harassment policy, whether or not such records are maintained as part of a personnel files, are not open to inspection. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(A). However, an administrative agency investigating the complaint may, upon a showing of necessity, gain access to information necessary to the investigation of such a complaint. Id.
A person in interest, who includes the person making a complaint and the person whose conduct is the subject of such a complaint, may make a record of sexual harassment complaint or investigation available for public inspection when such record supports the claim that an allegation of sexual harassment against such person is false. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(C).
"Executive position" is defined by Colo. Rev. Stat. § 24-72-202(1.3) as any non-elective employment position with a state agency, institution, or political subdivision, except employment positions in the state personnel system or in a classified system or civil service system of an institution or political subdivision.
A "finalist" is defined by Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A) as an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5); if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, then said applicants or candidates shall be considered finalists.
Records submitted by or on behalf of an applicant or candidate include records of employment selection processes for all executive positions, including selection processes conducted or assisted by private persons or firms at the request of a state agency, institution, or political subdivision. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(C).
State statute. Colo. Rev. Stat. § 24-72-204(1)(a). (See (B) below.)
Federal statute or regulation. Colo. Rev. Stat. § 24-72-204(1)(b).
Supreme Court rule or court order. Colo. Rev. Stat. § 24-72-204(1)(c). This includes Chief Justice Directives.
(2) The Custodian of Records has the discretionary authority to deny inspection of the following records on the ground that disclosure would be contrary to the public interest:
(3) "Substantial Injury to the Public Interest."
A number of Colorado statutes specifically provide that certain designated records are not public records subject to the Open Records Act and are to be kept confidential. Most of these exemptions from the Open Records Act pertain to records involving children and juveniles and to health records. These and other specific exemptions are discussed below.
Court records in juvenile delinquency proceedings or proceedings concerning a juvenile charged with the violation of any municipal ordinance except a traffic ordinance are open to inspection by various parties, including the juvenile, the juvenile's parent or guardian, any attorney of record, the juvenile probation department, any Colorado law enforcement agency, any person conducting a custody evaluation, and the state department of human services. Colo. Rev. Stat. § 19-1-304(1)(a). In addition, with the consent of the court, such records may be inspected by any other person having a legitimate interest in the proceedings. Colo. Rev. Stat. § 19-1-304(1)(b).
The public has access to arrest and criminal records information that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for committing the crime of possession of a handgun by a juvenile, an act that would constitute a class 1, 2, 3, or 4 felony, or an act that would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult. Colo. Rev. Stat. § 19-1-304(1)(b.5)(II)(A). In addition, the public has access to arrest and criminal records information that concerns a juvenile charged with any such act. Colo. Rev. Stat. § 19-1-304(1)(b.5)(II)(B).
The public also has access to arrest and criminal records information concerning a juvenile between the ages of 12 and 18 years who is charged with the commission of an offense that would constitute a violent crime if committed by an adult. Colo. Rev. Stat. § 19-1-304(5).
All other records of law enforcement officers concerning juveniles are not open to public inspection except to the juvenile, the juvenile's parent or guardian, any attorney of record, and to other law enforcement agencies who have a legitimate need for such information, and under certain circumstances, including when the court orders that the juvenile be tried as an adult criminal or when the juvenile has escaped from an institution to which such juvenile has been committed. Colo. Rev. Stat. § 19-1-304(2)(a).
Probation records. A juvenile probation officer's records are not open to inspection except to certain parties, including persons who have consent of the court, the juvenile's parent or guardian, any attorney of record, any person conducting a custody evaluation, the state department of human services, and law enforcement officers and fire investigators, who have access to limited information. Colo. Rev. Stat. § 19-1-304(1)(c).
iii. Juvenile Facilities.
All records prepared or obtained by the department of human services are confidential and privileged, and may be disclosed only to the parents, legal guardian, or attorney for the juvenile, to the extent necessary to make claims on behalf of the juvenile who is eligible to receive aid, insurance, or medical assistance, and for research or evaluation purposes. Colo. Rev. Stat. § 19-1-305(1).
iii. Internet luring of a child
vii. Keeping a place of child prostitution
viii. Pimping of a child
xii. Human trafficking of a minor for sexual servitude
Colo. Rev. Stat. § 24-72-304(4.5) (2016).
iii. Disclosure of reports is not prohibited when there is a death of a suspected victim of abuse or neglect and the death becomes a matter of public record, and the subject of an arrest and formal criminal charge. Colo. Rev. Stat. § 19-1-307(1)(b).
Information provided to the state registrar of vital statistics concerning information about birth parents and adoptees shall not be disclosed under any public records law or Freedom of Information Act. Colo. Rev. Stat. § 25-2-113.5(9).
However, information from patients' records may be made available for purposes of research into causes and treatment of alcoholism if patients' names or other identifying information is not disclosed. Colo. Rev. Stat. § 25-1-312(2).
An exception to confidentiality exists for information concerning observed criminal behavior of a mental patient while receiving treatment. Colo. Rev. Stat. § 27-10-120(2).
Court-ordered mental health evaluations are deemed confidential records by Colo. Rev. Stat. § 27-10-106(5).
However, statements made by persons involved in an accident to law enforcement officers and contained in official reports are not confidential under Colo. Rev. Stat. § 42-4-1610. People v. Reyes, 42 Colo. App. 73, 589 P.2d 1385 (1979).
Information obtained as a result of fruit and vegetable inspections by the State Agricultural Commission are not open to public inspection. Colo. Rev. Stat. § 35-23-115.
Information concerning agricultural markets prepared for the Board of Marketing Control is confidential and not subject to public disclosure. Colo. Rev. Stat. § 35-28-119(2).
Disclosure of information acquired by the banking board and the bank commissioner concerning banks is prohibited by Colo. Rev. Stat. § 11-2-111.5.
However, the Commission's recommendation for removal, censure, discipline, suspension, or retirement of a judge is not confidential after it is filed with the Supreme Court. Colo. R. Jud. Discip. 6(a). See Colo. Rev. Stat. § 24-72-401.
Willful disclosure of the contents of papers filed with or proceedings before the judicial discipline commission is a misdemeanor punishable by a $500 fine. Colo. Rev. Stat. § 24-72-402.
Any library employee who discloses user information commits a class 2 petty offense and is subject to a $300 fine. Colo. Rev. Stat. § 24-90-119(3).
Gift tax returns are declared confidential by Colo. Rev. Stat. § 39-25-114. Disclosure is unlawful.
Inheritance tax applications are declared confidential by Colo. Rev. Stat. § 39-23-168. Disclosure is unlawful.
Personal property schedules, along with accompanying exhibits or statements, filed with the tax assessor are private and confidential documents. Colo. Rev. Stat. § 39-5-120.
Information furnished by employers to the Division of Labor that contains a trade secret, or information obtained through inspections or other proceedings by the Division of Labor that might reveal a trade secret is confidential information not to be divulged by the Division of Labor under Colo. Rev. Stat. § 8-1-115.
Information relating to trade secrets or secret processes concerning water quality control furnished to the State Water Quality Control Commissioner is confidential. Colo. Rev. Stat. § 25-8-405(2). However, this section does not prohibit full disclosures of effluent (pollution) data. See CF & I Steel v. Air Pollution Control Div., 77 P.3d 933 (Colo. App. 2003).
However, this right of privacy is surrendered when a welfare recipient becomes a criminal defendant charged with or convicted of a crime involving violation of welfare laws. Lincoln v. Denver Post, 31 Colo. App. 283, 501 P.2d 152 (1972).
Request for confidentiality by person in interest
Professional review board records
Closed. Records of the following Professional Review Committees concerning disciplinary actions, hearings, investigations, and reports are declared confidential and/or exempt from the Open Records Act: State Board of Dental Examiners, Colo. Rev. Stat. § 12-35-118(7); State Board of Medical Examiners, Colo. Rev. Stat. § 12-36-118(10); State Board of Nursing, Colo. Rev. Stat. § 12-38-120(10); State Board of Psychologist Examiners, Colo. Rev. Stat. § 12-43-705(4); State Board of Registration for Professional Engineers & Professional Land Surveyors.
Complaints and results of investigation are closed to public inspection during the investigatory period. Colo. Rev. Stat. §§ 12-25-109(2), 12-25-209(2). Otherwise, the board's records and papers are subject to Colo. Rev. Stat. §§ 24-72-203 and 24-72-204.
Attorney-Client Privilege. Because the Open Records Act specifically authorizes denial of inspection of "privileged information" in Colo. Rev. Stat. § 24-72-204(3)(a)(IV), common law attorney-client and attorney work product privileges are incorporated into the Open Records Act. Hence, communications between attorneys and clients and materials prepared by an attorney in anticipation of litigation are not public records subject to inspection. Denver Post v. University of Colorado, 739 P.2d 874, 880-81 (Colo. App. 1987).