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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
ded to apply to all state employees and designed to treat e-mail the same way facsimiles and postal mail were treated under the original CORA provisions. See An Act Concerning Public Access to Governmental Processes, and, in Connection Therewith, Amending the Public Records and Open Meetings Laws to Address Issues Raised by the Use of Electronic Mail by Governmental Agencies: Hearing on S.B. 96-212 before Senate Comm. on Business Affairs and Labor, 60th Gen. Assemb., 2nd Sess. (March 11, 1996). He explained that the amendments were not intended to extend to "personal information", including "facts about lives" that inherently convey an "expectation of confidentiality." Id.
In discussing the amendments, Senator Wells also explained that the inquiry into whether or not e-mail messages are public records must be a content-driven inquiry. Id. More specifically, only records made, maintained, or kept in performance of official duties (relating to the public function) are subject to disclosure. Id. Senator Wells explained how the amendments would affect interoffice e-mail:
[Public employees might be] doing stuff [on work e-mail systems or internet] that are not really part of their official duties. [But the] crux of this Bill is to say it is the record that makes it . . . a public record or not. [For example,] two state employees are e-mailing back and forth with each other . . . they might be in violation of a personnel rule, but violation of a personnel rule does not make it therefore a public record. . . . It is a public record if it is maintained or kept in the performance of their duties. The State can handle personnel through the personnel system . . . . If it is personal, it is personal. If made, maintained, or kept in the performance of one of your official capacities, then it is a public record. Otherwise it is not a public record. Period.
Id.
Concerns were also raised that the amendment adding elected officials' correspondence might be too invasive. At least one Representative expressed concern that he did not want to lose privacy as a result of the legislation. See An Act Concerning Public Access to Governmental Processes, and, in Connection Therewith, Amending the Public Records and Open Meetings Laws to Address Issues Raised by the Use of Electronic Mail by Governmental Agencies: Hearing on S.B. 96-212 before House Committee on State, Veteran, and Military Affairs, 60th Gen. Assemb., 2nd Sess. (April 9, 1996) (comments of Rep. Tupa). It was clarified at this committee meeting that, like other records, the inquiry as to whether correspondence is a "public record" focuses on what the communication includes, rather than how it was produced. See id. That is, simply because an e-mail message was produced by an elected official or created "using state equipment" does not make it a public record. Id.
We conclude, based our previous case law, the history of CORA and the plain language of the 1996 amendments, that CORA's definition of "public records" limits the type of records covered by CORA and specifically distinguishes between e-mail messages that address the performance of public functions or the receipt or expenditure of public funds and those that do not. Furthermore, the inclusion of an elected official's correspondence, namely the official's e-mail messages, does not eliminate the privacy protection inherent in the "public records" definition and does not extend the scope of CORA beyond records of public business.
Having clarified and set forth the standard for determining the scope of CORA with respect to e-mail messages, we now turn to the court of appeals' opinion and the e-mail messages at issue.
C. Application
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