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Denver Publishing Co. v. Board of County Commissioners of the County of Arapahoe9/12/2005
366. Where the agency is the custodian of the records sought and the records are "made, maintained, or kept" in a public capacity, the burden to show that the records are likely public records has been met. The burden then shifts to the public agency to show that the records are public or non-public. To determine whether the records kept by the agency are public or non-public records, the agency must look to the content of the records to resolve whether they relate to the performance of public functions or involve the receipt or expenditure of public funds.
Here, the messages were "maintained or kept" by Arapahoe County. As such, a closer inquiry into the content of the message is required to determine if the messages were "for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds." The content of the messages must address the performance of public functions or the receipt and expenditure of public funds. Insofar as the messages do not, they remain non-public and outside the scope of CORA.
The content-driven inquiry is not made inapplicable to the correspondence of elected officials by the requirement of section 24-72-202(6)(a)(II)(B) that elected officials' correspondence be "demonstrably connected" to an elected official's duties as an elected official or the receipt or expenditure of public funds. Rather, this requirement also mandates that one look to the content of the message to determine if it addresses the performance of public functions or the receipt or expenditure of public funds.
Were it correct, as DPC argued in its briefs before the district court and the court of appeals, that a message authored or received by an elected official is enough to deem a message a "public record", it would not have been necessary for the General Assembly to add language requiring a "demonstrable connection" to the duties of the elected official or public funds. Had that been the case, the General Assembly could have simply declared that all e-mail correspondence to and from an elected official was a "public record" within the scope of CORA. Because the General Assembly instead required a "demonstrable connection" to the "exercise of functions required or authorized by law or administrative rule" or "involv the receipt or expenditure of public funds," the content of the message is the only way to determine if such a connection exists.
Furthermore, it is also clear that section 24-72-202(6)(a)(II)(B) was not intended to create a backdoor to acquire personal or private communications sent to or from an elected official by demonstrating a tenuous or indistinct impact or effect on an elected official's performance (or non-performance) of his official duties. The inclusion of an elected official's correspondence, namely the official's e-mail messages, into CORA was in furtherance of the concept that "public business is the public's business." Public Records Report at 1-2 (emphasis added). This inclusion did not eliminate the privacy protection inherent in the "public records" definition.
In its briefs, DPC urged that the General Assembly's use of "demonstrable connection" as applied to "correspondence", implied a broader category of records and a different meaning from the "public records" definition in section 24-72-202(6)(a)(I). DPC argued that elected officials' "correspondence" need not have as close of a nexus to the performance of public functions and the expenditure of public funds as other public records. As such, DPC contended that the e-mail correspondence between Baker and Sale were "public records" because the two held a working relationship in the County Clerk and Recor
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