NEWS MEDIA UPDATE · COLORADO · Freedom of Information · Sep. 14, 2005
High court bars release of sexually explicit work e-mail
Sep. 14, 2005 · The Colorado Supreme Court barred the release of more than 500 romantic or sexually explicit e-mail messages between a county clerk and his assistant Monday, ruling they are not public record because they do not involve government business.
The Rocky Mountain News in Denver and the Arapahoe County commissioners had sought the release of e-mail sent between then Arapahoe County Clerk and Recorder Tracy Baker and his deputy and lover at the time, Leesa Sale. The paper and the commissioners argued the exchanges were public record since they were written on and transmitted through the county’s e-mail and text-pager systems.
The Supreme Court rejected the newspaper’s argument that e-mail generated on government equipment by public officials during work hours should be public, ruling that it is the content of the writings, not where, when or how they are created, that determines whether they are public.
In overturning two lower courts, the state’s high court said Colorado’s open records law discerns two types of government officials’ correspondence: that involving government business, and that involving their personal lives. Writings about officials’ personal lives are not public, the court said.
“The only discernible purpose of disclosing the content of those messages is to shed light on the extent of Baker and Sale’s fluency with sexually explicit terminology and to satisfy the prurient interests of the press and public,” Justice Alex J. Martinez wrote for the unanimous Supreme Court.
The controversy began in 2002, when an independent report documented the existence of 622 e-mail messages, 570 of which contained sexually explicit and/or romantic content, that had been sent between Baker and Sale over a nearly three-year period. The report was issued by a private investigator hired by the county to look into allegations including sexual harassment, a hostile work environment and misuse of county property and funds. Although the report was initially released to the public in October 2002, it was redacted and did not contain the sexually explicit correspondence that the Rocky Mountain News sought.
William Buckley, who represented Baker in the lower courts, told The Associated Press that the ruling confirms his argument.
“Based on our research, we believed there was a right to privacy that needed to be protected, and it seems like the Supreme Court agreed with us on that point,” he said.
The Supreme Court ordered a state judge in Arapahoe County to shroud the entirely personal e-mail between Baker and Sale; to release e-mail regarding strictly governmental business; and to release e-mail with mixed content after removing the personal portions.
In an editorial published Tuesday in the Rocky Mountain News, the editorial board reacted to the 7-0 ruling against their efforts to gain access to the e-mail.
“We had joined the case to find out how Baker was running his office and why the county commissioners had called for his resignation. We argued that disclosure would deter other public officials from misusing public equipment, and still believe that’s true,” the editorial read. “Baker’s relationship with Sale — and the fact that he so clearly showered favors on her — had a serious effect on office morale and so was in no way a purely private matter.”
Baker was recalled by voters in February 2004 and Sale resigned.
The Supreme Court’s ruling overturns a district court and the appeals court. The district court ruled in 2003 that the e-mail was public record and should be released. The appeals court later ruled that some of the correspondences between the county officials were protected under their constitutional right to privacy.
The case has been sent back to the Colorado Court of Appeals to reconsider which e-mail falls within the legal definition of “public records” under Colorado law, as outlined in the Supreme Court’s ruling.
(The Denver Publishing Co. v. Board of County Commissioners, Arapahoe County; Media Counsel: Marc D. Flink, Baker & Hostetler, Denver, Colo.) — KT