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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
from constituents. See §§ 24-72-202(6)(a)(II)(A) & (C). In addition, like all records that fall within the definition of "public records", elected officials' correspondence must have a "demonstrable connection to the exercise of functions required or authorized by law or administrative rule" or "involve the expenditure of public funds." See § 24-72-202(6)(a)(II)(B).
The General Assembly also included a third provision with the 1996 amendments that, although not limited to e-mail, affects the factors considered in determining whether or not a record is a public record. Section 24-72-202(6)(a)(III) provides that "acceptance by a public official or employee of compensation for services rendered, or the use by such official or employee of publicly-owned equipment or supplies, shall not be construed to convert a writing that is not otherwise a 'public record' into a 'public record'." In other words, just because a person is employed in the public sector and may use publicly-funded resources to send a message does not, separate and alone from other considerations, make the message a public record.
B. Analysis
Given the plain language of these amendments and their incorporation into the CORA statutory scheme as a whole, it is apparent that e-mail must meet the same requirements as any other record to be deemed a "public record". To be a "public record", an e-mail message must be for use in the performance of public functions or involve the receipt and expenditure of public funds. The simple possession, creation, or receipt of an e-mail record by a public official or employee is not dispositive as to whether the record is a "public record". The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly-owned computer equipment is insufficient to make the message a "public record".
The inquiry here must be content-driven. In Wick, to decide whether the court may examine the contents of a personal diary, we addressed the threshold question of who has the burden of proving that CORA applied. 81 P.3d at 362-63. To resolve this question, we focused on whether the diary at issue was "made, maintained, or kept" by a public official such that the dairy was likely a "public record" under CORA. Id. at 366. We concluded that such a preliminary determination could be made without looking to the content of the diary and instead focused on the context in which it was created and the capacity in which the diary was kept. Id. If it was written or maintained in a private capacity, it remained outside the scope of the public records definition; if it was written or maintained in a public capacity, it was likely within the scope of the definition. Id.
The inquiry into whether records are "public records", however, does not end here. Instead, because there exist certain records that may be "made, maintained, or kept" by a public agency or official that are not "for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds," we must take a closer look at the records at issue. This is equally true where the records at issue are e-mail messages generated by public officials and public employees.
Consistent with Wick, when a party requests records under CORA, the initial burden is on the requesting party to demonstrate that the records at issue are likely "public records." Id. at 362. Under circumstances where the records are in the possession of a public official, rather than an agency, that burden may be met if it can be shown that the records are "made, maintained, or kept" in a public capacity.
Id. at
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