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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
islative Counsel's recommendation to adopt the proposed legislation, the General Assembly in 1968 adopted the definition of "public records" and the remainder of the proposed legislation nearly verbatim as Colorado's first comprehensive open records law. See Ch. 66, secs. 2-6, 1968 Colo. Sess. Laws 201, 201-04 (currently codified as amended at sections 24-72-201 to -206, C.R.S. (2004)). With minor changes not relevant here, CORA still makes use of this same definition.
2. The 1996 Amendments
At the time CORA was originally adopted, e-mail and digital-text messages had not been developed and were not used by the State of Colorado or its political subdivisions.
However, in the 1990's, as the technology grew and rapidly became a common tool of communication and data storage to conduct the State's business, the General Assembly sought to clarify how and when e-mail and other digital records would fall within the mandatory disclosure provision of CORA. See ch. 271, sec. 1, 1996 Colo. Sess. Laws 1479, 1479 (setting forth the legislative declaration with regard to the use of e-mail under CORA).
The General Assembly understood that the use of e-mail presented a complex issue given the unique properties of e-mail messaging. See id. As the General Assembly described it, "the use of electronic mail by agencies, officials, and employees of state government creates unique circumstances" given that e-mail shares the private characteristics of telephonic communication and, at the same time, it "creates an electronic record that may be used or retrieved in electronic or paper format." Id. Like the use of telephones, by 1996 e-mail served a significant role in day-to-day business matters. Similarly, as with the occasional use of the telephone, e-mail was becoming a common tool of communicating outside business matters. For example, e-mail gave employees and employers the ability to take care of personal and family matters quickly and efficiently without having to leave the office. Much like the use of the telephone, this limited personal use served the best interests of business and government by keeping employees and employers in the office without significantly interrupting the workday. Taking these competing roles into consideration, the General Assembly in 1996 enacted legislation ("1996 amendments") expressly incorporating e-mail messages into CORA. See id. at secs. 2-8. The 1996 amendments brought e-mail within the scope of CORA's disclosure requirements in two ways.
First, the General Assembly added "electronic mail" to the definition of "writings" covered by CORA. See § 24-72-202(7). As such, given that the definition of "public records" incorporated by reference "all writings," e-mail became one class of writings that may be deemed "public records". To be a "public record", however, like other writings, e-mail must also be made, maintained, or kept by the government for use in exercise of functions required or authorized by law or administrative rule or involve the receipt or expenditure of public funds.
Second, the General Assembly added e-mail correspondence sent to and from elected officials as a public record. Prior to the 1996 amendment, it was unclear to what extent any correspondence of elected officials was considered a "public record". Through the amendment, the General Assembly identified three types of communications that may be deemed "public records"-communications sent by U.S. mail, private courier, and e-mail. § 24-72-202(1). The General Assembly, however, in an effort to protect privacy interests, required that for a communication to be a "public record", such communications could not be "work product" or "confidential communications"
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