“Electronic mail” includes electronic messages that are transmitted through a local, regional, or global computer network. Colo. Rev. Stat. § 24-72-202(1.2). However, content of electronic mail that does not bear a demonstrable connection to discharge of public functions or to the receipt or expenditure of public funds is not a public record. Denver Pub’g Co. v. Board of Cty. Commrs. for Arapahoe Cty., 121 P.3d 190, 2005 WL 2203157 (Colo. Sept. 12, 2005).
In recent years, government entities have sought to dissuade open records requests by erecting significant financial barriers because of the Colorado Open Records Act’s ambiguous fee provisions. For example, when the Rocky Mountain News requested e-mail messages and correspondence between employees of the Jefferson County Sheriff’s Department and Jefferson County School District following the Columbine High School massacre, the county responded that it would cost a minimum of $1.07 million for county attorneys to retrieve and review the electronically stored communications and determine which were required to be made public. The newspaper dropped the request after the county refused to waive the fees. The cities of Centennial and Denver have also both responded to targeted requests to inspect public officials’ electronic communications by requiring that the requester pay an approximately $2,000 fee.
For retention of records, including electronic records, agencies must maintain a records management program with documented policies and procedures. C.R.S. § 24-80-102.7.