A legal guide for reporters covering the Colorado shooting

On Friday morning, the nation awoke to breaking news about a mass murder at a movie theater. Twelve people were dead and possibly up to 40 adults and children injured after a gunman entered the midnight showing of the new Batman movie and opened fire on the crowd with three weapons — including an AK-47, according to news reports.

The suspect, 24-year-old James Holmes, was arrested in the theater’s parking lot soon after the shooting. By mid-morning, President Obama and presidential candidate Mitt Romney issued statements and expressed condolences to the grieving Aurora, Colo., community located less than 15 miles east of Denver.

Journalists covering the tragedy in the coming days need to know the basics of Colorado records and court access laws that will affect their reporting. Some of the key topics:

911 tapes: Considered “criminal justice records” that are presumed open unless “contrary to public interest.” However, state appellate courts have been “very deferential to law enforcement’s discretion” to withhold the records, said Steven D. Zansberg, a media attorney at Levine Sullivan Koch & Schulz, L.L.P. in Denver.

Arrest records: “Records of Official Action” (which includes arrest) must be released for public inspection in their entirety.

Compilations of criminal histories: Compilations of criminal history are open under Colo. Rev. Stat. § 24-72-303.

Gun permits: Gun permits are “criminal justice records” that are presumed open unless “contrary to public interest.”

Hospital reports: Medical records of individual persons are private and expressly exempted from the Open Records Act by Colo. Rev. Stat. § 24-72-204(3)(a)(1). Alcohol treatment records are confidential under Colo. Rev. Stat. § 25-1-312(1). Mental health records are confidential under Colo. Rev. Stat. § 27-10-120(1).

Mug shots: The official website of the Colorado Judicial Branch recognizes that “mug shots” a/k/a “arrest photographs” are “records of official action” that must be disclosed.

Patient’s location and general condition: Under the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), hospitals and health care providers can release to the public “directory information” about patients including an individual’s name, location within a facility and medical condition in generic terms that do not divulge specific health details. Patients have the right to object to the disclosure of information or opt out of the directory entirely. Additionally, clergy are given additional access to religious affiliation information.

In emergency situations where the patient does not have the ability to object to the disclosure of directory information, it may still be disclosed if a health care provider deems it to be in the interest of the patient and it would not be counter to an individual’s previous preferences to restrict such information. However, in emergency situations, health care providers must inform patients of their right to object to disclosure as soon as possible.

Rules for active investigations: The statute does not differentiate between active and closed investigations. Investigatory records are subject to public inspection unless, in the opinion of the records custodian, their disclosure would be “contrary to the public interest.” See Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985) (inspection of records of active investigations may be denied if disclosure would impair or impede the investigation).

Cameras in courts: Colorado court rules allow for expanded media coverage, which includes the photography or audio recording of trials, hearings or other proceedings held in open court that the public is entitled to attend. However, the rules limit media coverage of pretrial hearings in criminal cases to advisements, or first appearances, and arraignments. Those wishing to cover a particular proceeding must submit a written request to do so to the presiding judge at least one day in advance of the proceeding desired to be covered and must provide a copy of the request to counsel for each party participating in the proceeding. When deciding whether to allow such coverage, judges will consider three factors: 1) whether there is a reasonable likelihood that expanded media coverage would interfere with the rights of the parties to a fair trial; 2) whether there is a reasonable likelihood that the coverage would unduly detract from the “solemnity, decorum, and dignity of the court”; and 3) whether it would create adverse effects that would be “greater than those caused by traditional media coverage.” Under the rules, only one still and one video camera operator (with up to two cameras, at the judge’s discretion) are allowed in the courtroom at one time. The media are responsible for arranging these pooling agreements. Rule 2, Chap. 38 of the Colorado Rules of Civil Procedure.

Court proceedings: In Colorado, the First Amendment and state Constitution’s free-speech and free-press guarantees protect the right of public access to criminal trials and pretrial proceedings. As such, a judge may close a pretrial hearing only if 1) the dissemination of information would create a “clear and present danger to the fairness of the trial”; and 2) the prejudicial effect of such information on trial fairness “cannot be avoided by any reasonable alternative means.” Star Journal Publ’g Corp. v. County Court, 591 P.2d 1028, 1030 (Colo. 1979).

Court records: Under a 2005 Colorado Supreme Court judicial directive, all court files are presumed open to the public except for certain categories of records. However, these categories comprise an extensive list of records that are not accessible to the public unless a court rules otherwise, including:

• Court records from expunged or sealed cases;
• Court records, the public disclosure of which is protected by federal or state law;
• Juror questionnaires;
• Criminal history record checks;
• Medical and mental health information;
• Psychological and intelligence test information; and
• Pre-sentence reports.

Other pleadings or documents filed in connection with a criminal case are publicly available, although court administrators are required to redact sensitive information. Public access to search and arrest warrants and accompanying affidavits will likely be restricted when the investigation into the subject of the warrant is ongoing or the materials would “disclose a confidential source or something of that nature,” Zansberg said.

Much information in court records, including the scheduled date, time and location of court proceedings, judgments, charges, pleas, sentences and a list of documents filed in a case, is available online. However, addresses, phone numbers and other contact information for parties in cases, as well as information related to crime victims and witnesses in cases, are not accessible electronically.