FOREWORD

Open Records. Prior to enactment of the Colorado Public Records law in 1969, access to public records in Colorado was largely a matter of discretion of the custodian, except in cases where records were specifically made confidential by statute. This was even true of court records. See Times-Call Publishing Co. Inc. v. Wingfield, 159 Colo. 172, 410 P.2d 511 (1966).

The Colorado Public Records law was inspired by and patterned after the federal Freedom of Information Act as originally enacted, before the 1974 amendments. See Denver Post Corp. v. University of Colorado, 739 P.2d 874 (1987). The Open Records Act contains a broad legislative declaration that all public records shall be open for inspection unless otherwise specifically provided by law. Colo. Rev. Stat. § 24-72-201. Consonant with this mandate, the Colorado Supreme Court has held that a public official has no authority to deny any person access to a public record unless there is a specific statute permitting the withholding of the information requested. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). In several particulars, the Colorado General Assembly determined to achieve the general policy of the Public Records Law differently than did Congress in the federal Freedom of Information Act. See Colorado Legislative Council Research Publication No. 126, Open Records for Colorado (1967). For example, the Colorado statutory scheme provides that all "personnel" files are exempt from disclosure regardless of whether they would cause an invasion of an individual's privacy. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). In addition, most of the exemptions that parallel those of the Federal FOIA are not simply exempted from the disclosure requirements, but nondisclosure is mandatory. Id. at 204(3)(a). This gives parties who are the subject of information sought the right to challenge a request for disclosure of the information, which is not the case under the federal act. See Freedom Newspapers Inc. v. City of Colorado Springs, 739 P.2d 881 (Colo. App. 1987); CFI Steel Corp. v. Office of Air Pollution Control, 77 P.3d 933 (Colo. App. 2003).

The statute was amended in 1977 by the Criminal Justice Records Act, which dealt with all law enforcement investigative records and all court records in criminal prosecutions under separate legislation. Colo. Rev. Stat. §§ 24-72-301, et seq. This legislation gives criminal justice agencies, including courts and law enforcement agencies, discretion to withhold all criminal justice information other than records of official action, such as records of arrest, detention, charging, conviction, etc. The latter records are required to be maintained and available for public inspection, but even these records are subject to limited access orders or expungement after certain periods of time. In 1988, the Criminal Justice Records Act was amended to simplify the grounds and procedure for sealing of criminal justice records, but continues the requirement that records of official action be open unless they are ordered sealed.

Open Meetings. Colorado's open meetings law, known as the "Sunshine Law," was enacted by the people pursuant to a referendum held in 1972. Colo. Rev. Stat. §§ 24-6-401, et seq. The Sunshine Law was modeled after the Florida Government in the Sunshine Law. As initially enacted, this statute applied only to the General Assembly and "state agencies," i.e., agencies having statewide jurisdiction. The Sunshine Law has been liberally construed in favor of openness and to permit non-public sessions only in relatively narrowly defined circumstances. All discussions not falling within these "executive session" categories must be held in public, and in any event the discussion leading to the final decision must occur in public. See Cole v. State, 673 P.2d 345 (Colo. 1983).

A second statutory scheme (referred to herein as the "local government open meetings law") formerly applied to cities, counties and political subdivisions not having statewide jurisdiction. See Colo. Rev. Stat. § 29-9-101 (Repealed 1991). This statute provided that "all meetings" of local governmental agencies shall be held in public, but permitted executive sessions for determination of negotiation strategy, and "for consideration of documents or testimony given in confidence." The courts gave this statute a less than liberal construction, and held that executive sessions were appropriate for "deliberations" without limitation as to subject matter, so long as final decisions were made in public. See Hudspeth v. Board of County Commissioners, 667 P.2d 775 (Colo. App. 1983); see also Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986).

In 1991, the Colorado General Assembly enacted S.B. 91-33, which amended the Sunshine Law to apply to local governments as well as state agencies, thereby eliminating the two-tier system of open meetings laws. All government agencies.