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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
County Comm'rs, 95 P.3d at 604. In doing so, the court of appeals reached, inter alia, four legal conclusions regarding the operation of CORA and its function in relation to an individual's right to privacy.
First, the court of appeals found that all of the messages at issue, regardless of their content, were public records subject to the provisions of CORA because the messages were "writings" as defined by section 24-72-202(7), C.R.S. (2004), and were maintained by the county. Id. at 597. Second, the court of appeals found that the messages did not "fall within the exception" for correspondence of an elected official as described by section 24-72-202(6)(a)(II)(B) because the messages involved the expenditure of public funds. Id. at 597-98.
Third, the court found that the subreport on "Sexual Harassment/Hostile Environment" as well as any messages identifying the complaining employee were precluded from disclosure pursuant to section 24-72-204(3)(a)(X)(A) because the report was a record of sexual harassment complaints and investigations and CORA protected the identity of the employees involved. See id. at 598-99. Fourth, the court of appeals found that although the sexually explicit e-mails unrelated to county business were public records that fell within the scope of CORA, some of the messages were nevertheless exempt from disclosure because they were protected by the constitutional right to privacy. Id. at 599-604. The court of appeals found that the factors set forth in Martinelli v. Dist. Court, 199 Colo. 163, 612 P.2d 1083 (1980), to determine if documents fell within the scope of constitutional privacy were relevant to the analysis of the e-mail messages at issue here and remanded the case to the district court with directions to determine which of the messages were constitutionally protected and which should be disclosed under CORA. Id. at 604.
We granted certiorari to determine whether the mandated disclosure of the e-mails pursuant to CORA is barred by Baker's and Sale's constitutional privacy rights.
II. Discussion
The constitutional privacy issue in this case arises in a dispute surrounding the reach of CORA and the statutorily-mandated disclosure of e-mail messages exchanged between Baker and Sale, whom Baker directly supervised. At issue are competing public policies-open access to government records and the protection of individual privacy. Because the court of appeals interpreted the provisions of CORA and found a constitutional privacy exemption to CORA's mandatory disclosure provisions, DPC asks us to review this interpretation and find that no such constitutional exemption exists.
Central to DPC's argument is that when the General Assembly adopted CORA and its provisions dealing with e-mail messages, the General Assembly recognized and balanced individual privacy concerns by the express terms of the statute. DPC points to the General Assembly's legislative declaration acknowledging that the "act is intended to balance the privacy interests and practical limitations of public officials and employees with the public policy interests in access to government information." See ch. 271, sec. 1, 1996 Colo. Sess. Laws 1479, 1479. DPC contends that the General Assembly balanced constitutional privacy interests by expressly excluding certain types of records from disclosure and, as such, the court of appeals erred when it found a "constitutionally based general privacy exemption" to the disclosure provisions of CORA.
Based on DPC's contention that the express provisions of CORA sufficiently balance and protect the individual privacy interests at issue in this case, we are compelled to first explore the provisions of C
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