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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
attempting to adopt open records legislation, though they did so without success. Id. at 15.
Following the failure of a proposed open records act in 1967, the General Assembly authorized the Colorado Legislative Counsel to form a committee to study the shortfalls of the failed open records legislation and draft new legislation "to determine those records of our state and local governments that should be open to public review and those that should have only limited access to such review or should be maintained solely for review by governmental officials in the course of their assigned duties." Id. at 15; see also Sen. Joint Res. No. 42, 1967 Colo. Sess. Laws 1094, 1094. As described by the committee's chairman, the study was an attempt to best resolve "which classes of records should be made available to the public and which should be maintained as private or confidential." Id. at iii.
The study resulted in the Public Records Report discussing the several concerns with prior legislation and the difficulty with balancing two significantly competing interests-freedom of press through open government and individual privacy. Id. at 2. In acknowledging these competing interests, the report identified the need for a "responsible legislature" to strike a balance between these two policy considerations and "arrive at an agreement as to what constitutes a proper balance." Id.
Thus, the report set forth proposed legislation that purported to strike such a balance.
The proposed legislation declared the driving policy of the open records legislation was to require that "all public records shall be open for inspection." Id. at xix. The report pointed out that with such a broad underlying policy, the definition of "public records" was "especially important" given that it "determines the reach of the bill." Id. at xiii. That is, if a record falls within the scope of the "public records" definition, it must be disclosed or be made open to inspection unless the statute otherwise excludes it. If a record does not fall within the definition of public record, the statute does not require or prohibit disclosure to the public.
Given the significance placed upon the "public records" definition, one significant change from the failed legislation and the legislation proposed by the Legislative Counsel was how "public records" were defined. For example, the failed 1967 open records act defined "public records" very broadly by incorporating nearly every aspect of records kept by government and public employees, including all written documents that were made, produced, executed, received, or preserved "in pursuance of law" or "in connection with the transaction of public business." Although the definition proposed in the report included all written materials, it narrowed the class of written documents to those "made, maintained, or kept . . . for use in the exercise of function required or authorized by law or administrative rule or involving the receipt or expenditure of public funds." Id. at xix (emphasis added). This proposed definition was intended to protect individual privacy and narrow the focus of the open records act to those records directly related to functions of government. By qualifying the class of written records held by the government, the legislation ensured that the "public records" definition would not be all-inclusive, and instead would require a content-driven inquiry ensuring the records disclosed under CORA were tied to public functions or public funds. As such, the proposed definition alleviated significant concerns that the broad 1967 definition gave "almost unlimited access to records at the state and local levels." Id. at 16.
Following the Leg
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