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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
ORA and the privacy protection already integrated into CORA's express statutory provisions. Furthermore, it is our obligation and crucial to our exercise of judicial authority that we do not resolve constitutional questions or make determinations regarding the extent of constitutional rights unless such a determination is essential and the necessity for such a decision is clear and inescapable. See, e.g., People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985). Thus, although the constitutional right to privacy may bar access to public records otherwise disclosable under CORA, see Wick Communications Co. v. Montrose Bd. of County Comm'rs, 81 P.3d 360, 365 n.4. (Colo. 2003), before we proceed to any constitutional analysis we must first review the court of appeals' interpretation and application of CORA for a resolution originating in the express provisions of CORA.
Accordingly, we begin our analysis where all CORA analysis begins-determining if the records at issue are public records within the scope of CORA's mandatory disclosure provisions. In doing so, when construing the statutory language of CORA, we "undertake de novo review and look first to the plain language, always striving to give effect to the General Assembly's intent and chosen legislative scheme." Sooper Credit Union v. Sholar Group Architects, P.C., 113 P.3d 768, 771 (Colo. 2005). "We interpret every word, rendering none superfluous; undefined words and phrases are read in context and construed literally according to common usage." Id.
A. "Public Records" Under CORA
The General Assembly has declared that it is the "public policy of the state that all public records shall be open for inspection by any person at reasonable times, except as provided herein or as otherwise specifically provided by law." See § 24-72-201, C.R.S. (2004). In furtherance of this policy, the General Assembly enacted CORA, which requires the custodian of records to make available to the public all public records, subject only to certain exceptions. See ch. 66, sec. 3, 1968 Colo. Sess. Laws 201, 202 (currently codified as amended at 24-72-203(1)(a), C.R.S. (2004)). Critical to the function of CORA is the determination of what is and what is not a "public record".
CORA specifically defines "public records" as "all writings made, maintained, or kept by the state, any agency, institution, . . . or political subdivision of the state . . . for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds." § 24-72-202. Public records under CORA also "includes the correspondence of elected officials" insofar as the correspondence is "demonstrab connect to the exercise of functions required or authorized by law or administrative rule" or involves "the receipt or expenditure of public funds." See § 24-72-202(6)(a)(II)(B).
We have addressed very few cases interpreting the extent of the "public records" definition and have never addressed the applicability of the definition to e-mail messages exchanged between an elected official and a public employee. We have, however, recently addressed the privacy implications of the definition and the distinction between private and public documents made by public officials.
In Wick, 81 P.3d at 364-66, we discussed the individual privacy protection inherent in CORA and the effect of such protection on the reach of CORA as a whole. As we explained, " lthough generally CORA favors broad disclosure, the General Assembly [in adopting its provisions] recognized that not all documents should be subject to public disclosure." Id. at 364. As such, the General Assembly placed two limits in CORA to protect priva
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