Colorado

Email
Fees
Special cases

Reporters in Colorado say that one area of frustration is access to court records. The state court administrator has denied requests for court record databases. Instead, they’ve contracted with a private company to provide the information online, searchable one record at a time, for a fee. That obviously makes it difficult to match other data against court data. Another difficulty relates to confidential information in databases. Unlike some states, an agency in Colorado isn’t required to redact the information and provide the rest of the information. The statute allows the agency discretion to deny a record that contains confidential information.

The law. The Colorado Open Records Act covers “all writings made, maintained or kept by the state, any agency, institution or political subdivision of the state.” Colo. Rev. Stat. § 24-72-202(6). The Open Records Act defines writing to include “all . . . cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics but does not include computer software.” § 24-72-202(7). A separate section regulates criminal justice records, which include “all books, paper, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics.” § 24-72-302(4). A requester may seek either “copies” or “printouts.” § 24-72-205(1) (public records), § 24- 72-306 (criminal justice records).

Custodians of miniaturized or digital records are to assist the public in locating documents and to ensure access “without unreasonable delay or unreasonable cost.” § 24-72-203(b). State agencies, institutions and political subdivisions were ordered to adopt a written policy regarding any monitoring of e-mail and the circumstances under which it may be conducted. § 24-72-204.5.

Cases & opinions. Regulations prohibiting the public from personally using the state treasury department’s computer terminals did not unlawfully deny access to electronic records. Requiring a company to request information from the treasury department staff regulated only the manner of access and did not violate the open records act. Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. Ct. App. 1991). Although public requesters may not specify the form of access they receive, they are to be guaranteed reasonable accessibility that does not alter the contents of the information.
In Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. App.1991) the Colorado Court of Appeals held the Open Records Act does not permit the public to dictate the format in which information will be transmitted; it guarantees only the public’s right to access information that is a matter of public record “in a form which is reasonably accessible and which does not alter the contents of the information.” Applying this standard, the court upheld regulations denying public access to government-owned computer terminals or magnetic computer tapes, but requiring that the information on those computers be transmitted to the requester in another “reasonably accessible” format (either orally, on microfiche, or computer printout). These regulations, the court ruled, do not deny access to the electronically stored information but merely regulate the manner of access to that information.

In 2001, the attorney general issued an opinion covering commonly asked questions about public records. (Att’y Gen. Formal Op. No. 01-1: "Colorado Open Records Act, Nineteen Frequently Asked Questions" (Alpha No. LW AG AGBAM, issued July 5, 2001) Here are some of the key points of interest to users of electronic records:

Confidential Information: Some public records contain a mixture of information that is public and information that is confidential, and not subject to inspection under the Open Records Act. In general, the government is not required to black out, or “redact,” confidential portions of a record. It can lawfully refuse to let you see that record because of its partial confidential content.

If the record you want contains anything confidential, the custodian will decide whether it is appropriate to keep the document confidential, or to black out the confidential part and give you the document. How will the custodian make this decision? He or she will consider the following questions. How difficult is it to block out the confidential information? Is there so much confidential information that blacking it out is impractical because it will make the rest of the document meaningless? Does he or she risk accidentally disclosing something confidential? The easier it is to take it out the confidential part, the more likely it is the custodian will let you have a copy.

Social Security numbers: The Open Records Act does not specifically say whether your Social Security number is confidential. It authorizes a records custodian to deny a request for a Social Security number if it would be contrary to federal law. Under federal law, if you gave your Social Security number to the state because of a law enacted after Oct. 1, 1990, the state must treat your Social Security number as confidential.

Electronic Records: Computers are widely used in Colorado government to hold public information. Many of the computer records kept by governments in Colorado are open for inspection under this law. For example, electronic mail is widely used, and is an open record unless it is otherwise exempt from public inspection. The same is true of records kept in government databases.

E-mail. E-mail is now considered a public record unless it falls into one of the exemptions, such as work product. Colo. Rev. Stat. § 24-72-202 (1997). On or before July 1, 1997, the state or any agency, institution, or political subdivision thereof that operates or maintains an electronic mail communications system adopted a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted. The policy includes a statement that correspondence of the employee in the form of electronic mail may be a public record under the public records law and may be subject to public inspection under the Open Records Act. Colo. Rev. Stat. § 24-72-204.5. E-mail messages that are public records must be maintained in either paper or electronic format. E-mail messages that are not public records should be deleted.

Although e-mail is considered a public record, that did not stop one agency from charging high fees for getting the information. When the Denver Rocky Mountain News requested the e-mail messages of Jefferson County Sheriff John Stone to find out how he responded to the shootings at Columbine High School, it didn’t get the records. Instead, county officials sent a $1 million bill to the newspaper. That fee would not necessarily guarantee the records would even be released. Officials defended the fee, saying it would merely recoup the cost of determining whether the e-mail messages were covered by the state’s open records law. In contrast, in 1996, then-Colorado Gov. Roy Romer voluntarily gave up two weeks of his e-mail messages to a student, who had requested them under the state open records act.

Fees. The statute requires “reasonable” fees for copies or printouts, not to exceed $1.25 a page unless “actual costs exceed that amount” or a higher fee is set by statute. If the custodian does not have facilities for making copies or printouts, the requester must pay the cost of providing those facilities. Colo. Rev. Stat. Ann. § 24-72-205(1)-(2) (public records), § 24-72- 306 (criminal justice records). If an agency needs to manipulate data to generate a record in a form not used by the agency, a reasonable fee not exceeding actual cost may be charged. If the public record is not generated by word processing, the fee for a copy, printout or photograph may be based on recovery of the “actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system.” Fees may be reduced for journalism and other public purposes. § 24-72-205(3)-(4).

Special Cases. DMV records. In 2000, the governor signed a bill that altered the public records act to require a notice of the right to request confidentiality to be posted wherever applications or renewals for drivers licenses, I.D. cards, motor vehicle titles, and motor vehicle registration are accepted. The law also deleted an existing exception allowing the disclosure of confidential records for “the lawful use by the press and news media in gathering news information.” § 42-2-121