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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
JUDGMENT REVERSED IN PART, AFFIRMED IN PART, AND REMANDED WITH DIRECTIONS
EN BANC
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 investigati
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