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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
cy interests. Id. First, the General Assembly provided a "limited" definition of "public records". Id. Second, for certain types or classes of records that met the definition of "public records", the General Assembly provided specific exceptions that prohibited disclosure by the custodian of the records. Id. In focusing on this first limitation, we concluded that "CORA was not intended to cover information held by a government official in his private capacity." Id.
At issue in Wick was whether a public official's private diary that he relied on in preparing an official report was a public record. Id. at 361. In addressing this issue, we focused on the first part of the public record definition-whether a "writing" is "made, maintained or kept" by the state or a political subdivision of the state. We found that " diary is the foremost example of one's private papers," and simply because a document was "made during one's tenure as a public official does not render it a public record." Id. at 365. Furthermore, we took notice that CORA and our prior case law "steadfastly guard against disclosure of private papers" and concluded that the purpose behind CORA was not furthered by "disclosing public officials' every thought and feeling [to the public]." Id. As such, we concluded that the public official's diary was not a public record and therefore did not fall within the mandatory disclosure provisions of CORA. See id. at 366.
As in Wick, we are again concerned here with the incorporation of privacy and the interpretation and application of the "public records" definition. Unlike Wick, however, where the diary was not "made, maintained, or kept" by the County, the e-mail messages here are "maintained or kept" by Arapahoe County. Instead, the issue of whether the e-mails sent and received by Baker are "public records" turns on whether the reason the records were "maintained or kept" was "for use in the exercise of functions required or authorized by law or administrative rule or involve the receipt or expenditure of public funds."
Because the records at issue are e-mail messages, we turn to the history of CORA to understand the intent of the General Assembly when it expanded CORA's coverage to e-mail messages.
In doing so, we turn first to the privacy considerations that guided the General Assembly to originally adopt the "public records" definition as part of CORA in 1968. We then look to the 1996 amendments to CORA and the privacy interests the General Assembly took into account when it incorporated e-mail messages and the correspondence of elected officials as "public records". Based upon this review, we conclude that the scope of CORA's "public records" definition-the part of that definition stating "the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds" in particular-limits the type of e-mail messages covered by CORA and specifically distinguishes between those messages that relate to the performance of public functions or the receipt and expenditure of public funds and those that do not.
1. The 1968 Act
In the 1960s, with the expansion of government, momentum grew for the concept that " ublic business is the public's business." Legislative Council of the Colo. Gen. Assembly, Open Public Records for Colorado 1-2 (Research Publ'n No. 126, 1967) (hereinafter "Public Records Report") (quoting Harold L. Cross, The People's Right to Know: Legal Access to Public Records and Proceedings xiii (New York: Columbia Univ. Press 1953)). As such, in the years prior to 1968, the General Assembly sought to provide open government and public access to certain government records by
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