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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
(6)(a), also rebuts any argument that the use of public funds to create, store, or transmit the e-mail messages satisfies the requirement that the messages "involve the receipt or expenditure of public funds." Whether looking to the precise language of section 24-72-202(6)(a)(I) or section 24-72-202(6)(a)(II)(B) to determine if a record or an elected official's correspondence is a "public record", section 24-72-204(6)(a)(III) applies and clarifies that the concept of involving public funds means more than acceptance of public funds or use of publicly-owned equipment. Because the General Assembly did not intend the scope of CORA's disclosure requirements to include records solely because the records were created with the use of public funds, we must focus on the content of the record to determine if the record "involves the receipt or expenditure of public funds."
After considering the content of the e-mail messages, as required by the statute, we conclude that not all of the e-mail messages at issue here have a demonstrable connection to the performance of public functions or involve the receipt or expenditure of public funds. It is apparent that a large portion of the e-mail messages instead contain only sexually-explicit exchanges between Baker and Sale. Based upon the content of the e-mails, it is clear they were sent in furtherance of their personal relationship and were not for use in the performance of the public functions of the Clerk and Recorder's Office. These messages demonstrate very private exchanges that convey the "every thought and feeling" of a public official that we sought to guard from disclosure in Wick. See id. at 365. The only discernable purpose of disclosing the content of these messages is to shed light on the extent of Baker and Sales' fluency with sexually-explicit terminology and to satisfy the prurient interests of the press and the public.
Accordingly, not all of the e-mail messages at issue are public records under CORA. Furthermore, because the privacy interests raised by Baker and Sale under the circumstances of this case should have been protected through the correct application of the "public records" definition, it is not necessary to reach the constitutional privacy issue.
Likewise, we need not address the second issue for which we granted certiorari because it is inherently dependent upon the constitutional privacy issue and a finding that the messages are, in fact, "public records". DPC contends that the messages are "public records" and the only person to contest their release is the custodian of records pursuant to section 24-72-204(6) if the release would cause "substantial injury to the public interest." Where, as we decide here, there is no finding the messages are "public records", the portion of section 24-72-204(6) addressing the custodian's discretion to release the "public records" is not applicable.
Given the court of appeals' erroneous understanding of the "public records" definition and the error in the district court's order finding that all of the messages were "public records", we reverse the court of appeals' interpretation and application of the "public records" definition and remand with the directions to return the case to the district court for findings consistent with this opinion.
2. Application on Remand
Given the complex procedural history and findings of the court below, we find it useful to first review what messages are and are not at issue.
The investigative report that gave rise to this case identified 622 e-mail messages between Baker and Sale. Of those messages, the report indicated that 570 contain sexually explicit material. The report does not, however,
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