C. What records are and are not subject to the act?

(1) "Public Records" Defined.

"Public records" subject to the Act are defined by Colo. Rev. Stat. § 24-72-202(6)(a)(I) generally to include all records made, maintained, or kept by the state or by any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5-121(2), C.R.S., or political subdivision of the state (including cities, towns, and counties), or that are set forth in Colo. Rev. Stat. § 29-1-902, and held by any local government-financed entity:

For use in the exercise of functions required or authorized by law or administrative rule; or

Involving the receipt or expenditure of public funds.

A record not made, maintained or kept by a government actor in his official capacity is not a public record. Wick Communications v. Montrose County Board of County Commissioners, 81 P.3d 360 (Colo. 2003) (County manager's private diary was held 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).

(2) A person may request copies, printout, or photographs of any public record that the Act grants the right to inspect. Colo. Rev. Stat. § 24-72-205(1).

(3) "Public records" subject to the Act include "writings," which is defined by Colo. Rev. Stat. § 24-72-202(7) as meaning and including "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics." "Writings" also includes digitally stored data, including electronic mail messages. Id. However, computer software is specifically excluded from the definition of "writings" in Colo. Rev. Stat. § 24-72-202(7).

(4) "Public records" also includes the "correspondence" of elected officials, Colo. Rev. Stat. § 24-72-202(6)(a)(II), which is defined by Colo. Rev. Stat. § 24-72-202(1) as a communication sent or received by one or more specifically identified individuals and that is or can be produced in written form, including communications sent via U.S. mail, private courier, and electronic mail. However, "public records" does not include correspondence that is:

Work product, as defined in Colo. Rev. Stat. § 24-72-202(6.5);

Without a demonstrable connection to the exercise of functions authorized by law and does not involve the receipt or expenditure of public funds; or

· A communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or a communication from the elected official in response to such a communication from a constituent. Colo. Rev. Stat. § 24-72-202(6)(a)(II).

(5) In addition, the following records are expressly designated as public records by statute:

a. Disclosure Statements of Public Officials (Colo. Rev. Stat. §§ 24-6-202, et seq.).

Under Colo. Rev. Stat. § 24-6-202, a written disclosure statement must be filed with the Secretary of State within 30 days after their election or appointment by all legislators, the Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, judges, district attorneys, members of the State Board of Education, Regents of the University of Colorado, and members of the Public Utility Commission.

Disclosure is to include sources of income, investments over $5,000, real estate, offices and directorships, lobbyists, creditors to whom is owed $1,000 or more, and state-regulated businesses with which the official is associated.

The disclosure is also to include the same information for the official's spouse and minor children.

Each disclosure statement is public information, available to any person upon request during normal working hours. Colo. Rev. Stat. § 24-6-202(5).

Income tax returns filed with or in lieu of disclosure statements are also public information under Colo. Rev. Stat. § 24-6-202(6).

b. Lobbyist Disclosure Statements (Colo. Rev. Stat. §§ 24-6-301, et seq.).

Under Colo. Rev. Stat. § 24-6-302, all registered professional lobbyists and firms organized for professional lobbying purposes that employ such lobbyists must file a disclosure statement with the Secretary of State that contains information about all contributions received by and spent by lobbyists, gift or entertainment expenditures, names of persons who have received contributions, and other specific information required by Colo. Rev. Stat. § 24-6-301(1.9).

Lobbyists' disclosure statements are public records of the Secretary of State, and shall be open and readily accessible for public inspection. Colo. Rev. Stat. § 24-6-304(2).

c. State Auditor Reports.

Reports of the State Auditor shall be open to public inspection except for portions of any report containing recommendations, comments, and any narrative statements, which are released only upon a majority vote of the audit committee. Colo. Rev. Stat. § 2-3-103(2).

Work papers of the State Auditor shall be open to public inspection only upon majority approval of the audit committee. Work papers are not open to public inspection until the completed report has been filed with the committee. Colo. Rev. Stat. § 2-3-103(3).

d. Division of Labor. All proceedings of the Division of Labor are public records under Colo. Rev. Stat. § 8-1-106(3).

e. Jail Records.

The keeper of the county jail is to keep daily records of the commitment and discharge of all persons delivered to his custody, including date of entrance, name, offense, sentence, fine, age, sex, citizenship, and times and conditions of commitment and discharge. The record shall be open to inspection by the public at all reasonable hours. Colo. Rev. Stat. § 17-26-118.

f. County Records.

All books and records required to be in the offices of the County Sheriff, clerk and recorder, treasurer, and clerk of the district and county courts are generally open to examination by any person. Colo. Rev. Stat. § 30-10-101(1). Any officer having the custody of such books and records may make "reasonable and general regulations" concerning their inspection by the public. Colo. Rev. Stat. § 30-10-101(2).

g. Court Records.

The judgment record and register of actions in all courts are declared open to public inspection during office hours by Colo. Rev. Stat. § 13-1-119. This statute provides that this information may also be presented on microfilm or computer terminal.

Pursuant to Colorado Supreme Court Chief Justice Directive 05-01, all books, records, pleadings, filings, documents, indexes, calendars, orders, judgments, decrees, minutes, registers of action, and any other materials in any court that are not declared to be private or confidential by statute or specific order shall be open to the public for reasonable inspection at reasonable times during business hours. The general policy is that court materials are open to the public unless they are closed for specific reasons by specific court order.

Although persons other than parties in interest and their attorneys may examine pleadings and other papers filed in actions pending before any court, they may do so at the discretion of the court. Times-Call Publishing Co. v. Wingfield, 159 Colo. 172, 410 P.2d 611 (1966); see Colo. Rev. Stat. § 30-10-101(1). The Times-Call case holds that a statute that on its face limits the right of access to certain classes of persons, but does not expressly include access to others will, because of First Amendment considerations, be construed to confer discretion to permit access to the media. Moreover, where the subject matter of the action is of public interest, refusal to allow inspection is an abuse of discretion. Id.

Records in civil cases may be sealed for privacy or similar reasons. Colo. R. Civ. P. 121, § 1-5.

In Office of State Court Administrator v. Background Info. Sys., 994 P.2d 420 (Colo. 1999), the Supreme Court upheld its own directive prohibiting disclosure of court records in bulk (computerized data).

h. Real Estate Records.

Records of the county clerk and recorder pertaining to interests in real property are public records under Colo. Rev. Stat. § 30-10-101(1). However, under Colo. Rev. Stat. § 30-10-101(2), the clerk may make "reasonable and general regulations" concerning the inspection of such books and papers by the public.

Torrens Titles. Records of titles to real property registered under the Torrens Title Registration Act in the office of the registrar of titles are public records. Colo. Rev. Stat. § 38-36-150.

i. Professions and Occupations. The following are specifically declared to be public records:

Chiropractors. Records of the proceedings of the State Chiropractic Board and the register of all applications for licensing and all licensed chiropractors are declared to be public records under Colo. Rev. Stat. § 12-33-110.

Dentists. Records by the State Dental Board of all persons to whom dental licenses and license renewal certificates have been granted, and the numbers and dates of granting are declared by Colo. Rev. Stat. § 12-35-120 to be public records open to public inspection during ordinary hours.

Psychologists. Records by the grievance board of the names, addresses, educational qualifications, disclosure statements, therapeutic orientations or methodologies, and years of experience in each specialty area of all person practicing psychotherapy in the state are open to public inspection under Colo. Rev. Stat. § 12-43-220(1).

Real Estate Commission. Records of real estate licenses, investigations, and proceedings of the Real Estate commission kept in its office or in the Department of Regulatory Agencies are open to public inspection under Colo. Rev. Stat. § 12-61-112(1).

j. Motor Vehicle Records.

Records of the Department of Revenue pertaining to motor vehicle registrations, licenses and permits are declared to be confidential, consistent with the federal Driver's Privacy Protection Act of 1994 (18 U.S.C. § 2721, et seq.). Such records may be obtained by various parties in connection with motor vehicle matters, debt collection, litigation, or "research activities . . . so long as the personal information is not published, redisclosed, or used to contact the parties in interest." Colo. Rev. Stat. § 24-72-204(7) (2004).

Accident reports made by sheriffs, police, coroners, or law enforcement officers are public records under Colo. Rev. Stat. § 42-4-1610; 42-1-206. Accident reports made by any person involved in an accident, however, are declared confidential by Colo. Rev. Stat. § 42-4-1610. Clark v. Reichman, 130 Colo. 329, 275 P.2d 952 (1954).

Mobile home titles are public records under Colo. Rev. Stat. § 42-6-141.

k. Election Records.

All certificates of designation, petitions, certificates of nomination, acceptances, declinations, and withdrawals filed in connection with public elections are declared public records by Colo. Rev. Stat. § 1-4-504.

l. Voter Registration Records.

Voter registration books in the custody of the county clerk and recorder are declared to be public records subject to examination during office hours under Colo. Rev. Stat. § 1-2-227.

m. Division of Correctional Industries.

Records of the Division of Correctional Industries, including accounts of all monies received by and disbursed on its behalf, are public records open to inspection under Colo. Rev. Stat. § 17-24-107.

n. Minutes of Meetings of State Agencies.

The minutes of a meeting of any state board, committee, commission or other policy-making or rule-making body shall be open to public inspection under Colo. Rev. Stat. § 24-6-402(d)(I).

(6) Criminal Records.

Criminal justice records are the subject of a separate part of the Open Records Act, Colo. Rev. Stat. §§ 24-72-301, et seq. Records of official actions of criminal justice agencies are declared open to inspection by any person by Colo. Rev. Stat. § 24-72-303; all other records of criminal justice agencies are open for inspection as provided.

Records of Official Actions. Records of "official actions" include records of any arrests, indictments, releases from custody, parole decisions, sentencing decisions, and dispositions of cases. Colo. Rev. Stat. § 24-72-302(7).

Other Records. All criminal justice records other than records of official actions are open to inspection by any person at reasonable times at the discretion of the official custodian. Colo. Rev. Stat. § 24-72-304(1).

i. Grounds for denial of inspection.

Disclosure contrary to statute or court rule or order. Colo. Rev. Stat. § 24-72-305(1).

Disclosure "contrary to public interest." The custodian may deny access to records of investigations, intelligence information, or security procedures of any sheriff, district attorney, police, or other law enforcement agency. Colo. Rev. Stat. § 24-72-305(5). See Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972) (holding under former law that some official action records may not be available, overruling § 24-72-303).

Where the police have a legitimate interest in avoiding disclosure of potential criminal conduct not ripe for prosecution, full access may be denied to police intelligence information, including taped recordings of an informant's statements that mentioned the petitioner's name. Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).

Solicitation of Business. Criminal justice records and records of official actions are not to be used for the purpose of soliciting business for pecuniary gain. The custodian shall deny access to records unless the person making the request signs a statement affirming that the records will not be used to solicit business. Colo. Rev. Stat. § 24-72-305.5. See Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir.) (1994) (Colo. Rev. Stat. § 24-72-305.5, although a content-based restriction on commercial speech under the First Amendment, is valid under the Central Hudson framework.)

ii. Procedure upon denial.

The applicant can request a written statement from the custodian of the grounds for the denial of access. The statement must be provided within 72 hours and must cite the law or regulation under which access is denied or the general nature of the public interest protected. Colo. Rev. Stat. § 24-72-305(6).

The person denied access can also apply to the district court for an order directing the custodian to show cause why inspection of the record should not be allowed. The court can order the custodian to permit inspection if denial was improper, and may also award the applicant court costs, attorney fees, and a $25 per day penalty if the denial was arbitrary and capricious. Colo. Rev. Stat. § 24-72-305(7).

iii. Types of Records. "Criminal justice records" subject to inspection include books, papers, cards, photographs, tapes, recordings, and other documentary materials made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule. Colo. Rev. Stat. § 24-72-302(4). Denver Post Corp. v. Cook, 104 P.3d 293 (Colo. App. 2004) (records seized subject to search warrants are not criminal justice records, but public records), cert. granted in part, Harris v. Denver Post Corp., 2005 Colo. LEXIS 9 (Colo. 2005).

iv. Copies. Fees for copies are set by the agency that has the records. Colo. Rev. Stat. § 24-72-306(1). If the custodian does not have facilities for making copies, the person requesting the records is to be granted access to the records to make copies. Colo. Rev. Stat. § 24-72-306(2).

v. Restricted Records. In certain areas, records of arrests, indictments, charges, and the identities of persons may be limited in release or sealed.

Sexual Assault Victims. The name of any victim of a sexual assault or alleged sexual assault is to be deleted from any criminal justice record prior to its release to any individual or agency other than a criminal justice agency when such record bears the notation "SEXUAL ASSAULT" as prescribed in Colo. Rev. Stat. § 24-72-304(4).

Authors of Correspondence. The court may order sealed any information in a criminal justice record, including basic identification information, to protect the author of any correspondence contained in the record. Colo. Rev. Stat. § 24-72-308(1.5).

Applicants in Regulated Professions or Occupations. Any division, board, commission, or person responsible for the licensing, certification, or registration functions for any governmental entity, in addition to any other authority conferred by law, may use fingerprints to access, for comparison purposes, arrest history records of any licensee, registrant, or person certified to practice a profession or occupation or applicant thereof, or any employee or prospective employee of a licensee, registrant, or person certified to practice an occupation or profession. Colo. Rev. Stat. § 24-72-305.4(1).

vi. Sealed Records.

Criminal records may be sealed by court order upon the petition of a person in interest upon a finding that harm to the person's privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records. Colo. Rev. Stat. § 24-72-308(1)(c). See R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004); People v. Bushu, 876 P.2d 106 (Colo. App. 1994); D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).

Records pertaining to traffic infractions and convictions for driving under the influence of alcohol or drugs and convictions for offenses involving unlawful sexual behavior may not be sealed. Colo. Rev. Stat. § 24-72-308(3).

Basic identification information is not subject to an order to seal records. Colo. Rev. Stat. § 24-72-308(1). This includes the name, place and date of birth, last known address, Social Security number, occupation and address of employment, physical description, photograph, handwritten signature, sex, fingerprints, and any known aliases of any person. Colo. Rev. Stat. § 24-72-302(2).

Upon an order to seal records, they are deemed not to exist, and the person who is the subject of the records may lawfully deny the criminal record. Colo. Rev. Stat. §§ 24-72-308(1)(d) and 24-72-308(1)(f). See D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).

After records have been sealed, inspection may be permitted by the court only upon the petition of the person who is the subject of the records or by the prosecutor, and only for reasons identified in the petition. Colo. Rev. Stat. § 24-72-308(1)(e).

In general, if a person is not charged, is acquitted or the charges are dismissed, the arrest and criminal information records of that person may be sealed upon the petition of the person in interest. Colo. Rev. Stat. § 24-72-308(1)(a)(I). See People v. D.K.B., 843 P.2d 1326 (Colo. 1993) (convicted persons may not have records sealed). See generally Ison & Blumenthal, "Sealing Criminal Records in Colorado," 21 Colorado Lawyer 247 (Feb. 1992). However, arrest and criminal records information may not be sealed if an offense is not charged due to a plea agreement in a separate case, or a dismissal occurs as part of a plea agreement in a separate case. Colo. Rev. Stat. § 24-72-308(1)(a)(II).

vii. Electronic Mail.

The status of electronic mail as a public record is addressed in Colo. Rev. Stat. § 24-72-204.5. See Vol. 25 No. 10 Colorado Lawyer p. 99 (Oct. 1996).

On or before July 7, 1997, any state or agency, institution, or political subdivision thereof that maintains an electronic mail communications system shall adopt a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted. Colo. Rev. Stat. § 24-72-204.5(1).

The policy shall include a statement that correspondence in the form of electronic mail may be a public record under the public records law and may be subject to public inspection under Colo. Rev. Stat. § 24-72-203. Colo. Rev. Stat. § 24-72-204.5(2).