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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
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We first review the court of appeals' opinion and its interpretation and application of the "public records" definition. Because we find the court of appeals misinterpreted the definition, we remand the case to the court of appeals for return to the district court.
1. Court of Appeals' Opinion
The court of appeals found that that all of the messages at issue, regardless of their content, were public records subject to the provisions of CORA. In re Bd. of Comm'rs, 95 P.3d at 597. It did so on the basis that the messages were "writings" as defined by section 24-72-202(7) and were maintained by the county. Id. The fact that these e-mails were "writings" maintained by the County, however, is insufficient to find the e-mails were a "public record". Furthermore, simply because the messages were sent and received by Baker, an elected official, is not dispositive. The court of appeals failed to take into account the specific nature of the e-mails and their individual content to determine if they address the performance of public functions. An analysis of the messages based solely on the context in which they were created, without an examination of the content of the messages, is insufficient to determine whether the messages are "public records".
Additionally, the court of appeals incorrectly applied section 24-72-202(6)(a)(II) as a separate and distinct "official correspondence exception" to the "public records" definition. See In re Bd. of Comm'rs, 95 P.3d at 597-98. We do not view "official correspondence" as an exception to the "public records" definition. Rather, as we read section 24-72-202(6)(a)(II), it specifically includes and excludes elected officials' correspondence from the "public records" definition, but it does not create an "exception."
As a whole, section 24-72-202(6)(a) defines what is a "public record". Specifically, the statute first sets forth the definition of "public records". See § 24-72-202(6)(a)(I).
Next, it specifies whether elected officials' correspondence are public records. See § 24-72-202(6)(a)(II). Last, the statute clarifies that the use of public funds in creating the records does not, by itself, make any record a "public record". See § 24-72-202(6)(a)(III).
When applying section 24-72-202(6)(a)(II) the court of appeals found that all of the messages entailed the expenditure of public funds and therefore declined to address whether the content of the e-mail messages addressed the performance of public functions or the receipt or expenditure of public funds. In re Bd. of Comm'rs, 95 P.3d at 597-98. Specifically, the court found that the messages were sent while Baker and Sale were being compensated as county employees, the messages were sent on a county-funded e-mail system, and the county-owned computers and pagers used to send the messages were purchased and maintained by public funds, but the court did not consider the content of the messages. Id. at 598.
Because the court of appeals viewed "official correspondence" as an exception to the "public records" definition, it did not apply section 24-72-202(6)(a) as a whole. Thus, the court did not take into account that the expenditure of public funds to create the messages, pursuant to section 24-72-202(6)(a)(III), is insufficient to deem the e-mail messages "public records". Because section 24-72-204(6)(a)(III), provides that the public official's acceptance of public funds or use of publicly-owned equipment does not convert a record that is not otherwise a "public record" into a "public record", we do not agree with the court of appeals' analysis.
Section 24-72-202(6)(a)(III), when read together with all of section 24-72-202
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