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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
separately specify those 570 messages. The district court in this case found that all of the 622 e-mail messages contained in the investigative report were "public records". As such, the court ordered the messages disclosed as part of a non-redacted version of the report. The district court's order included the disclosure of those messages contained in the Sexual Harassment/Hostile Environment subreport. To protect the parties pending an appeal of the order, the district court issued a stay prohibiting the release of any records.
On appeal, the court of appeals also found that all 622 messages were "public records". The court did not, however, require disclosure of all of the messages because it concluded that some messages were protected by an implied constitutional privacy exception. The court also found that the messages contained in the Sexual Harassment/Hostile Environment subreport and any e-mail messages concerning the sexual harassment allegations that identified any parties other than Baker or Sale were protected from disclosure pursuant to the express provisions of CORA.
During the proceedings before the court of appeals, Baker and Sale conceded in their briefs that 101 of the 622 messages were "public records" on the basis that the messages had a "demonstrable connection" to Baker's function as an elected official, but disputed that the remainder of the messages met the definitional requirements. According to their briefs, the 101 messages they identified "related to county business and county functions" and were not related to "passionate and explicitly sexual messages." Following the court of appeals' opinion, upon a motion by DPC, the court of appeals gave limited relief from the stay prohibiting the release of the messages and ordered the release of the 101 e-mails to DPC.
Accordingly, the messages at issue on appeal before this Court are the 521 messages that Baker and Sale have not agreed were "public records" minus those described by the court of appeals as messages not disclosable under the sexual harassment exception.
Having reviewed the record in this case and a non-redacted version of the investigative report, we find that each of the remaining messages could fall into one of three groups: 1) messages that address the performance of public functions that do not contain any personal information or sexually-explicit content; 2) messages that do not address the performance of public functions and do contain sexually-explicit content or other private communications; and 3) mixed messages containing both types of the foregoing communications. We address each group, in turn, below.
The first group of e-mail messages contains those types of communications, as we discussed above, that CORA seeks to make available to the public through its mandatory disclosure provisions. The content of these messages directly relate to Baker's function as an elected official or the expenditure of public funds. Many, if not all, of these messages have been disclosed as part of the 101 messages released following the court of appeals' opinion.
The second group of e-mail messages contains those types of private communications the General Assembly intended to protect as private and fall outside the "public records" definition. These messages were sent and received in furtherance of the personal relationship between Baker and Sale and do not address the performance of their public functions. Most of the remaining messages fall into this group.
The third group-e-mail messages that contain both public and private communications-cause some difficulty as the competing policy interests for and against disclosure are equally present within t
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