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Colorado

Open Courts Compendium

Author

Tom Isler
Kutak Rock LLP
1801 California Street, Suite 3000
Denver, CO 80202
thomas.isler@kutakrock.com

Last updated May 2019

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

Case law on a constitutional or common law right of access to courts is sparse in Colorado. The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979); see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007) (“It has long been recognized that the public and the press have a qualified First Amendment right to attend a criminal trial.”); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection); In re Water Rights Application, No. 86 CW 46, 1993 WL 739422, at *2 (Dist. Ct., Water Div. 3 Jan. 6, 1993) (discussing a “common law presumptive right of access” to court records, which “attaches at the time documents are filed with the Court, and the Court must consider whether the balance of equities favoring sealing overrides that presumptive right”).

In dicta, the Colorado Supreme Court recently reiterated that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of “unfettered” access to criminal court records.  People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).

Access to court records in Colorado is governed by statute and court rules.  The Colorado Open Records Act (“CORA”), C.R.S. § 24-72-201 et seq., declares a “public policy of this state that all public records shall be open for inspection by any person at reasonable times . . . .” The Colorado Court of Appeals has interpreted CORA to mean that “unless there exists a legitimate reason for non-disclosure, any member of the public is entitled to review all public records. There is no requirement that the party seeking access must demonstrate a special interest in the records requested.” Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996); A.T. v. State Farm Mut. Auto. Ins. Co., 989 P.2d 219, 221 (Colo. App. 1999) (“There is a presumption that the public has access to court records.”); People in Interest of T.T., 2017 COA 132, ¶ 15 (“the Colorado legislature did not intend court records to be open to public inspection for all purposes under the Public Records Act”).

CORA restricts the public right of access to court records if such inspection “is prohibited by rules promulgated by the supreme court or by the order of any court,” C.R.S. § 24-72-204(1)(c), or if disclosure would be contrary to any federal or state statute or regulation, among other restrictions.

The Colorado Supreme Court promulgated C.R.C.P. 121, § 1-5 to govern access to civil court files.  The rule provides that a court may limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.” An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.” C.R.C.P. 121, § 1-5(4).  The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.”  Anderson, 924 P.2d at 1126.  The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.” Id.

The Colorado Supreme Court also has recognized that Chief Justice Directives “operate[] as such a court order or rule” within the meaning of CORA. Office of the State Court Adm’r v. Background Info. Servs., 994 P.2d 420, 422 (Colo. 1999).  Chief Justice Directive 05-01, as amended, contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), which governs access to court records generally.  “Court records” include “any document, information, audio or video recording, or other item that is collected, received, and maintained by a court” or by a probation department, that is related to a judicial proceeding, defendant, or probationer.  The Public Access Policy permits public access to court records, except as prohibited by federal or state statute, court rule, court order, or the Public Access Policy itself.  (Section 4.10; Section 4.60.)  Section 4.60 of the Public Access Policy lists several case classes, case types, and court records that are not accessible to the public, absent a court order. The Public Access Policy identifies the “Clerks of Court” as the official custodians of all case-related documents and information.

The Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq. (“CCJRA”), governs access to criminal justice records. Records of an “official action” are subject to a strong right of access, but inspection of other criminal justice records may be limited at the discretion of the courts.  Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, -304, & -305); Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008); People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008); Office of State Court Adm’r, 994 P.2d at 432 (“absent statutory mandate dealing with particular court records, such as records of official action in criminal cases, the courts themselves retain authority over the dissemination of court records”).

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B. Overcoming a presumption of openness

The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that 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.”  Id.  The Court explained that “mere conjecture and allegations of prejudicial publicity” cannot justify an exclusion order.  Id.  The judge must “issue a written order setting forth specific factual findings in this regard.”  Id.

See also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); see also Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

In civil cases, C.R.C.P. 121, § 1-5 governs access to court files. The rule provides that the court may limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.” An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.” C.R.C.P. 121, § 1-5(4).  The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.”  Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996).  The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.”  Id.

In general, the fact that “a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file pursuant to C.R.C.P. 121, § 1-5.  Anderson, 924 P.2d at 1127.  A “heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated.”  Id.  Likewise, “prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.”  Id.; see also Doe v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001).

For criminal records, the Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq.  (“CCJRA”), generally provides for and favors access to certain criminal records but gives the custodian of most criminal justice records considerable discretion to limit access.

The CCJRA distinguishes between records of “official actions” and other “criminal justice records.” An “official action” includes “an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.”  C.R.S. § 24-72-302(7).  “Criminal justice records” are “all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are 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 . . . .”  C.R.S. § 24-72-302(4).

There is a strong presumption of openness for records “official actions,” while the openness of other criminal justice records is largely discretionary.  Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, 0304, -305).  Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008) (“When a request is made to inspect a particular criminal justice record that is not a record of an ‘official action,’ the decision whether to grant the request is consigned to the exercise of the custodian’s sound discretion under sections 24-72-304 and -305, C.R.S. (2008).”).

Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.”  C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1).  However, the Colorado Supreme Court has interpreted the CCJRA to circumscribe a custodian’s discretion regarding disclosure of records of “official actions.”  People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008) (“[A] record of official action must be available for public inspection unless one of the two exceptions applies: (1) non-disclosure is required by the CCJRA, or (2) non-disclosure is required by other law.  Consequently, the CCJRA does not grant any criminal justice agency, including a court, any discretion as to whether to disclose a record of official action in its entirety, in part, or not at all.”) (citations omitted).

The CCJRA prohibits the disclosure of certain information, including the names or identifying information of sexual assault or child victims (see C.R.S. § 24-72-304), and permits denial of access on “public interest” grounds (see C.R.S. § 24-72-305(1.5) & (5); see also Madrigal, 2014 COA 67, ¶ 10, 349 P.3d at 299.

Chief Justice Directive 05-01, as amended, contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), which governs access to court records generally. “Court records” include “any document, information, audio or video recording, or other item that is collected, received, and maintained by a court” or by a probation department, that is related to a judicial proceeding, defendant, or probationer.  Generally, the Public Access Policy permits public access to court records, except as prohibited by federal or state statute, court rule, court order, or the Public Access Policy itself.  (Section 4.10; Section 4.60.)  Section 4.60 of the Public Access Policy lists several case classes, case types, and court records that are not accessible to the public, absent a court order.  The Public Access Policy identifies the “Clerks of Court” as the official custodians of all case-related documents and information.

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C. Procedural prerequisites to closure

The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that 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.”  Id.  The Court explained that “mere conjecture and allegations of prejudicial publicity” cannot justify an exclusion order.  Id.  The judge must “issue a written order setting forth specific factual findings in this regard.”  Id.

Many more Colorado courts have analyzed procedural prerequisites to closure under a defendant’s Sixth Amendment right to a public trial.  See, e.g., People v. Hassen, 2015 CO 49; People v. Irving, 2019 COA 1;People in Interest of G.B., 2018 COA 77.

In civil cases, C.R.C.P. 121, § 1-5 permits acourt to limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.”  An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.”  C.R.C.P. 121, § 1-5(4).  The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.”  Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996).  The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.”  Id.

In general, the fact that “a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file pursuant to C.R.C.P. 121, § 1-5.  Anderson, 924 P.2d at 1127.  A “heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated.”  Id. Likewise, “prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.”  Id.; see also Doe v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001).

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The media has standing to challenge a closure order.  See Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028 (Colo. 1979) (adjudicating an original proceeding filed by the media to challenge an order of closure in a criminal case); see also Order Re: Motion to Unseal Court File, People v. Holmes, No. 12CR1522, at *2 (Dist. Court, Cnty. of Arapahoe Aug. 13, 2012) (pdf) (“the Court FINDS that Media Petitioners have standing to assert the right of public access to court records”).

In civil cases, any member or the public may move the court to review an order limiting access to court files.  C.R.C.P. 121, § 1-5(4); see also Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996) (“the rule . . . grants to every member of the public the right to contest the legitimacy of any limited access order”).

In criminal cases, any person may request to inspect criminal justice records, including court records, and bring an action based on the denial of access, under the Colorado Criminal Justice Records Act.  C.R.S. §§ 24-72-301(2), 24-72-305(7).

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B. Procedure for requesting access in criminal cases

The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that 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.”  Id.  The Court explained that “mere conjecture and allegations of prejudicial publicity” cannot justify an exclusion order.  Id.  The judge must “issue a written order setting forth specific factual findings in this regard.”  Id.

In criminal cases, any person may request to inspect criminal justice records, including court records, under the Colorado Criminal Justice Records Act (“CCJRA”).  C.R.S. § 24-72-301(2).  The act, in conjunction with Chief Justice Directive 05-01, as amended, which contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), identifies the Clerk of Court as the custodian of criminal justice records.  If a clerk denies access to any criminal justice record, the applicant may request a written statement of the grounds for denial, which must be provided to the applicant within 72 hours.  C.R.S. § 24-72-305(6).  The applicant may also apply to the district court of the district where the record is found “for an order directing the custodian of such record to show cause why said custodian should not permit the inspection of such record.”  C.R.S. § 24-72-305(7).  The court must hold a hearing on the application “at the earliest practical time.”  C.R.S. § 24-72-305(7). “Unless the court finds that the denial of inspection was proper, it shall order the custodian to permit such inspection and, upon a finding that the denial was arbitrary or capricious, it may order the custodian to pay the applicant’s court costs and attorney fees in an amount to be determined by the court.”  C.R.S. § 24-72-305(7).  The court may also order the custodian to pay a daily penalty of up to $25 per day. C.R.S. § 24-72-305(7).

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C. Procedure for requesting access in civil matters

Colorado case law is not well developed on the constitutional or common law right of access to civil proceedings.

In civil cases, C.R.C.P. 121, § 1-5 governs access to court records.  The rule provides that the court may limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.”  “[A]ny person” may file a motion with the court to review an order limiting access.  C.R.C.P. 121, § 1-5(4).  The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.”  Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996).  The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.”  Id.

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D. Obtaining review of initial court decisions

Persons seeking review of lower court decisions can seek permission to file an immediate appeal to the Court of Appeals or petition to bring an original proceeding, pursuant to C.A.R. 21, in the Colorado Supreme Court.  See, e.g., People v. Owens, 2018 CO 55, ¶ 4, 420 P.3d 257, 258 (Colo. 2018) (“We have previously exercised our original jurisdiction [under C.A.R. 21] to address public access to court documents.”) (citing People v. Bryant, 94 P.3d 624 (Colo. 2004), and Times-Call Publ’g Co. v. Wingfield, 410 P.2d 511 (Colo. 1966)).  The Colorado Supreme Court declines to hear most petitions for original proceedings. According to the Colorado Judicial Branch website, in 2015, 242 original petitions were filed with the Colorado Supreme Court, and the Court issued an order to show cause in only 15 of them.

Colorado’s “expanded media coverage” policy, which addresses the use of cameras and audio and video recording in court, states that members of the media cannot seek appeal or bring an original proceeding regarding the denial of a request for expanded media coverage.  Members of the media requesting permission to provide expanded media coverage must sign a request form agreeing to comply with the policy.

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III. Access to criminal proceedings

A. In general

Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that 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.”  Id.see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007) (“It has long been recognized that the public and the press have a qualified First Amendment right to attend a criminal trial.”); Stapleton v. Dist. Court, 499 P.2d 310, 311 (Colo. 1972) (declining to require the trial court to hold a pretrial suppression hearing closed to the public and news media); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

In dicta, the Colorado Supreme Court recently reiterated that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of “unfettered” access to criminal court records.  People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).

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B. Pretrial proceedings

Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that 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.”  Id.

In In re P.R. v. Dist. Court, 637 P.2d 346 (Colo. 1981), the Colorado Supreme Court held that the evidentiary phase of a contempt hearing, stemming from a witness’s refusal to answer questions before a grand jury, “may be closed only upon express findings by the respondent court that: (1) a public hearing would create a clear and present danger to the investigation of matters presently pending before the statutory grand jury; and (2) the prejudicial effect of such information on presently pending grand jury matters cannot be avoided by any reasonable alternative less drastic than closure.”  Id. at 353.  The court clarified that a “finding of clear and present danger, by itself, does not constitute a warrant for an order of closure. Such a finding merely triggers the next level of inquiry—that is, whether reasonable and less drastic alternatives are available to the order of closure.”  Id. at 354.  The court held that the trial court’s “total closure of the evidentiary phase of the contempt hearing, without a finding of compelling necessity” violated the witness’s due process rights under the Fourteenth Amendment “as well as the constitutional interest of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial” under both the First Amendment and Colorado Constitution.  Id. at 354.  The court also ruled, however, that the “court may hear in camera any testimony relative to the effect of a public hearing on the integrity of grand jury proceedings prior to its ruling on closure, the record of such hearing to be sealed for purposes of appellate review.”  Id.  The court made clear that “the burden is upon the party seeking closure to establish the factual basis for the application.”  Id. at 353.

In dicta, the Colorado Supreme Court recently recognized that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of access to criminal court records.  People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018); see also Stapleton v. Dist. Court, 499 P.2d 310, 311 (Colo. 1972) (declining to require the trial court to hold a pretrial suppression hearing closed to the public and news media); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

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C. Criminal trials

Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that 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.”  Id.see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007) (“It has long been recognized that the public and the press have a qualified First Amendment right to attend a criminal trial.”); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); see also Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

In dicta, the Colorado Supreme Court recently reiterated that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of “unfettered” access to criminal court records.  People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).

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D. Post-trial proceedings

Colorado case law is not well developed on the constitutional or common law right of access to post-trial criminal proceedings.

Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has stated that “[t]he press has, therefore, a fundamental right to attend any court proceeding, which is open to the public.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030–31 (Colo. 1979). The Star Journal case concerned pretrial proceedings, and the Court held that 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.”  Id.; see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); see also Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

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E. Appellate proceedings

Colorado case law is not well developed on the constitutional or common law right of access to appellate proceedings.

Both the United States and Colorado constitutions guarantee criminal defendants the right to a public trial.  The Colorado Supreme Court has held that “criminal trials and pretrial proceedings should not be closed to media representatives unless an overriding and compelling state interest in closing the proceedings is demonstrated.”  Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030 (Colo. 1979).  In Star Journal, the court held that 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.”  Id.see also In re P.R. v. Dist. Court, 637 P.2d 346, 354 (Colo. 1981) (recognizing a constitutional right, under both the First Amendment and Article II, Section 10 of the Colorado Constitution, “of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial”); People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018) (stating, in dicta, that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declining to recognize a constitutional or common law right of access to criminal court records); In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465, 467 (Colo. 1956) (discussing the importance of press access to courts and constitutional guarantees of freedom of the press and public trials); Stackhouse v. People, 2015 CO 48 ¶¶ 19–21, 386 P.3d 440, 447 (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

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IV. Access to criminal court records

A. In general

The Colorado Supreme Court refused to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.  The court noted “the absence of any indication from the nation’s high court that access to all criminal justice records is a constitutionally guaranteed right belonging to the public at large” and found “no compelling reason to interpret our state constitution as guaranteeing such a sweeping—and previously unrecognized—right of unfettered access to criminal justice records.”  Id. ¶ 9.

The Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq.  (“CCJRA”), generally provides for and favors access to certain criminal records but gives the custodian of most criminal justice records considerable discretion to limit access.

The CCJRA distinguishes between records of “official actions” and other “criminal justice records.” An “official action” includes “an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.”  C.R.S. § 24-72-302(7).  “Criminal justice records” are “all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are 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 . . . .”  C.R.S. § 24-72-302(4).

There is a strong presumption of openness for records “official actions,” while the openness of other criminal justice records is largely discretionary.  Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, 0304, -305).  Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008) (“When a request is made to inspect a particular criminal justice record that is not a record of an ‘official action,’ the decision whether to grant the request is consigned to the exercise of the custodian’s sound discretion under sections 24-72-304 and -305, C.R.S. (2008).”).

Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.”  C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1).  However, the Colorado Supreme Court has interpreted the CCJRA to circumscribe a custodian’s discretion regarding disclosure of records of “official actions.”  People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008) (“[A] record of official action must be available for public inspection unless one of the two exceptions applies: (1) non-disclosure is required by the CCJRA, or (2) non-disclosure is required by other law.  Consequently, the CCJRA does not grant any criminal justice agency, including a court, any discretion as to whether to disclose a record of official action in its entirety, in part, or not at all.”) (citations omitted).

The CCJRA prohibits the disclosure of certain information, including the names or identifying information of sexual assault or child victims (seeC.R.S. § 24-72-304), and permits denial of access on “public interest” grounds (see C.R.S. § 24-72-305(1.5) & (5); see also Madrigal, 2014 COA 67, ¶ 10, 349 P.3d at 299.

Chief Justice Directive 05-01, as amended, contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), which governs access to court records generally.  “Court records” include “any document, information, audio or video recording, or other item that is collected, received, and maintained by a court” or by a probation department, that is related to a judicial proceeding, defendant, or probationer.  Generally, the Public Access Policy permits public access to court records, except as prohibited by federal or state statute, court rule, court order, or the Public Access Policy itself.  (Section 4.10; Section 4.60.)  Section 4.60 of the Public Access Policy lists several case classes, case types, and court records that are not accessible to the public, absent a court order. The Public Access Policy identifies the “Clerks of Court” as the official custodians of all case-related documents and information.

If a custodian denies access to a criminal justice record, the applicant may request a “written statement of the grounds for the denial,” and the custodian must produce a response within 72 hours, citing the law or regulation under which access is denied or explaining the general nature of the public interest to be protected by the denial.  C.R.S. § 24-72-305(6).  The applicant may also apply to the district court where the record is found seeking an order directing the custodian to show cause why the custodian should not permit the inspection of the record.  C.R.S. § 24-72-305(7).  Unless the court “finds that the denial of inspection was proper,” the court “shall order the custodian to permit such inspection,” and, in certain cases, may award the applicant court costs, attorney fees, and a daily penalty for each day inspection was denied.  Id.  When reviewing discretionary denials of access to ordinary criminal justice records, courts analyze whether the custodian abused his or her discretion, which makes it difficult for an applicant reverse a decision of a custodian through the courts.  See Madrigal, 2014 COA 67, ¶¶ 12–14, 349 P.3d at 300.

In the high-profile criminal trial of the Aurora movie theater shooter, People v. Holmes, a Colorado trial court declined to unseal “affidavits of probable cause, subpoenas, arrest warrants, [and] search warrants,” as “contrary to the public interest” under the CCJRA. See Order Re: Motion to Unseal Court File, People v. Holmes, No. 12CR1522, at *7 (Dist. Court, Cnty. of Arapahoe Aug. 13, 2012) (pdf).  The court did unseal the register of actions and many pretrial motions and orders, upon a motion of a media coalition.  Id. at **7–9.

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B. Arrest records

Arrest records are considered records of “official acts,” for purposes of the Colorado Criminal Justice Records Act (“CCJRA”).  C.R.S. §§ 24-72-302(7) & 24-72-303.  Records of “official actions” generally “shall be open for inspection by any person at reasonable times . . . .”  C.R.S. § 24-72-303(1); Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014); Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008). Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.”  C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1).  However, the Colorado Supreme Court has interpreted the act to circumscribe a custodian’s discretion regarding disclosure of records of “official actions.” People v. Thompson, 181 P.3d 1143, 1145–46 (Colo. 2008) (“[A] record of official action must be available for public inspection unless one of the two exceptions applies: (1) non-disclosure is required by the CCJRA, or (2) non-disclosure is required by other law.  Consequently, the CCJRA does not grant any criminal justice agency, including a court, any discretion as to whether to disclose a record of official action in its entirety, in part, or not at all.”) (citations omitted).

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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C. Dockets

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records, which include criminal dockets, have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) generally permits public access to court records.  (Section 4.10.)  The Public Access Policy defines a “court record” to include any “index, calendar, docket, [and] register of actions . . . related to a judicial proceeding.” (See Section 3.03(a)(3).)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records.  C.R.S. § 24-72-301, et seq.  The CCJRA distinguishes between records of “official actions” and other “criminal justice records.”  An “official action” includes “an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.”  C.R.S. § 24-72-302(7).  “Criminal justice records” are “all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are 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 . . . .”  C.R.S. § 24-72-302(4).

While records of “official actions” generally “shall be open for inspection by any person at reasonable times,” other criminal justice records “may be open for inspection” at the discretion of the custodian, subject to certain exceptions barring disclosure.  Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, 0304, -305); Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008) (“When a request is made to inspect a particular criminal justice record that is not a record of an ‘official action,’ the decision whether to grant the request is consigned to the exercise of the custodian’s sound discretion under sections 24-72-304 and -305, C.R.S. (2008).”). Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.”  C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1).

In the high-profile criminal trial of the Aurora movie theater shooter, People v. Holmes, No. 12CR1522, a Colorado trial court declined to permit disclosure of “affidavits of probable cause, subpoenas, arrest warrants, [and] search warrants,” as “contrary to the public interest” under the Colorado Criminal Justice Records Act. Order Re: Motion to Unseal Court File, People v. Holmes, No. 12CR1522, at *7 (Dist. Court, Cnty. of Arapahoe Aug. 13, 2012) (pdf).

The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records.  (Section 4.10.)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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E. Discovery materials

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records, which include discovery materials, have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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F. Pretrial motions and records

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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G. Trial records

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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H. Post-trial records

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records, and generally provides that custodians of ordinary criminal justice records have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The CCJRA expressly singles out records relating to posttrial release from custody, among others, as being subject to a strong right of access.  C.R.S. § 24-72-302(7) (defining such release as an “official action”); C.R.S. § 24-72-303 (providing a stronger right of access to records relating to an “official action” than to ordinary criminal justice records); Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (distinguishing the right of access to records related to official actions and ordinary criminal justice records; Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008).

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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I. Appellate records

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records and generally provides that custodians of ordinary criminal justice records have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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J. Other criminal court records issues

The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records and generally provides that custodians of ordinary criminal justice records have discretion to permit or deny public access.  C.R.S. §§ 24-72-302 & 24-72-304. The Colorado Judicial Department’s Public Access to Court Records (pdf) generally permits public access to court records, subject to certain exceptions.  (Section 4.10; Section 4.60.)

The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.”  People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018).  “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.”  Id. ¶ 8.  The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.

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V. Access to civil proceedings

A. In general

Colorado appellate courts have not addressed the constitutional or common law right of access to civil proceedings.  In the context of a criminal case, the Colorado Supreme Court stated that “[t]he press has . . . a fundamental right to attend any court proceeding, which is open to the public.” Star Journal Publ’g Corp. v. Cnty. Court, 591 P.2d 1028, 1030–31 (Colo. 1979).

In dicta in another criminal case, the Colorado Supreme Court recently recognized that “presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions,” but simultaneously declined to recognize a constitutional or common law right of access to criminal court records.  People v. Owens, 2018 CO 55, ¶ 1, 420 P.3d 257, 257 (Colo. 2018).

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B. Pre-trial proceedings

Colorado appellate courts have not addressed the constitutional or common law right of access to pre-trial proceedings in civil cases.

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C. Trials

Colorado appellate courts have not addressed the constitutional or common law right of access to civil trials.

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D. Post-trial proceedings

Colorado appellate courts have not addressed the constitutional or common law right of access to post-trial proceedings in civil cases.

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E. Appellate proceedings

Colorado appellate courts have not addressed the constitutional or common law right of access to appellate proceedings in civil cases.

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VI. Access to civil records

A. In general

The Colorado Open Records Act (“CORA”), C.R.S. § 24-72-201, declares a “public policy of this state that all public records shall be open for inspection by any person at reasonable times . . . .”  The Colorado Court of Appeals has interpreted CORA to mean that “unless there exists a legitimate reason for non-disclosure, any member of the public is entitled to review all public records.  There is no requirement that the party seeking access must demonstrate a special interest in the records requested.”  Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996); see also A.T. v. State Farm Mut. Auto. Ins. Co., 989 P.2d 219, 221 (Colo. App. 1999) (“There is a presumption that the public has access to court records.”).

CORA restricts the public right of access to court records if such inspection “is prohibited by rules promulgated by the supreme court or by the order of any court,” C.R.S. § 24-72-204(1)(c), or if disclosure would be contrary to any federal or state statute or regulation, among other things.

The Colorado Supreme Court promulgated C.R.C.P. 121, § 1-5 to govern access to civil court files.  The rule permits a court to limit access to court files upon a motion of any party to a civil action only if the court finds that “harm to the privacy of a person in interest outweighs the public interest.” An order limiting access may be reviewed by the court at any time on its own motion or upon the motion “of any person.” C.R.C.P. 121, § 1-5(4).  The rule “creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.”  Anderson, 924 P.2d at 1126.  The rule “squarely places the burden upon the party seeking to limit access to a court file to overcome this presumption in favor of public accessibility by demonstrating that the harm to the privacy of a person in interest outweighs the public interest in the openness of court files.” Id.

See also Times-Call Publ’g Co. v. Wingfield, 410 P.2d 511, 512–14 (Colo. 1966) (construing a statute to give clerks discretion to let non-parties to review pleadings or other papers filed in court, so as to avoid “serious questions of constitutional law involving freedom of the press and the separation of governmental power,” and stating that denial of access to the media to review pleadings and other papers in a case of public interest “would be an abuse of discretion”).

Chief Justice Directive 05-01, as amended, contains the Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf), which governs access to court records generally.  “Court records” include “any document, information, audio or video recording, or other item that is collected, received, and maintained by a court” or by a probation department, that is related to a judicial proceeding, defendant, or probationer.  The Public Access Policy permits public access to court records, except as prohibited by federal or state statute, court rule, court order, or the Public Access Policy itself.  (Section 4.10; Section 4.60.)  Section 4.60 of the Public Access Policy lists several case classes, case types, and court records that are not accessible to the public, absent a court order. The Public Access Policy identifies the “Clerks of Court” as the official custodians of all case-related documents and information.

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B. Dockets

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) defines “court record” to include any “index, calendar, docket, [and] register of actions . . . related to a judicial proceeding.” (See Section 3.03(a)(3).) The Public Access Policy generally permits public access to court records.  (Section 4.10.)

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C. Discovery materials

In Bowlen v. District Court Adams County, 733 P.2d 1179 (Colo. 1987), the Colorado Supreme Court considered the proper standard for entering a protective order to prohibit public disclosure of discovery materials exchanged by the parties in cases of public interest.  Although the district court initially entered a protective order, after media representatives “were contacted,” the court concluded that the protective order should be rescinded, because the case involved a National Football League franchise, which was a “matter of public interest,” and “the burden of overcoming the ‘presumption of openness’ for civil trials had not been met” by the parties seeking to prevent public access. Id. at 1181.  The Colorado Supreme Court concluded that the district court abused its discretion by imposing “a standard that grants heightened first amendment rights to the public and the media when discovery proceedings involve a matter of public interest.”  Id. at 1181, 1183.  After discussing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the Colorado Supreme Court concluded that “[w]e need not decide the exact degree to which pretrial discovery proceedings are insulated or protected from public disclosure by the first amendment, because the [U.S. Supreme] Court concluded that the ‘good cause’ showing required” under Fed. R. Civ. P. 26(c), or its state analogs, “is sufficient to safeguard whatever rights the public or media possess.”  Id. at 1182.

The e-filing system used by Colorado state courts permits parties to electronically serve documents on other parties without filing them with the courts, including discovery materials (“e-service”).  The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)

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D. Pre-trial motions and records

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

See also Times-Call Publ’g Co. v. Wingfield, 410 P.2d 511, 512–14 (Colo. 1966) (construing a statute to give clerks discretion to let non-parties to review pleadings or other papers filed in court, so as to avoid “serious questions of constitutional law involving freedom of the press and the separation of governmental power,” and stating that denial of access to the media to review pleadings and other papers in a case of public interest “would be an abuse of discretion”).

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E. Trial records

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

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F. Settlement records

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

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G. Post-trial records

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

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H. Appellate records

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

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I. Other civil court records issues

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) expressly applies to “all electronically filed (e-filed) or served (e-service) documents in accordance with the rules of the Supreme Court . . . .” (Section 4.00.)  In general, all “[i]nformation in the court record is accessible to the public,” and “court record” is broadly defined.  (Section 3.03(a); Section 4.10.)  The Public Access Policy restricts access to records in certain types of cases or to certain documents, absent a contrary court order.  (Section 4.60.)

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VII. Jury and grand jury access

A. Access to voir dire

Colorado case law is not well developed on the public’s right of access to voir dire.  See Stackhouse v. People, 2015 CO 48, ¶¶ 19–21, 386 P.3d 440, 447 (Colo. 2015) (Márquez, J., dissenting) (discussing Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) and the right of the public and press to attend trial and jury selection).

The Colorado court system’s media policy prohibits photography and audio or video recording of jury voir dire. See Rule 3, Chapter 38 of the Colorado Supreme Court Rules (pdf).

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B. Juror identities, questionnaires and other records

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access all juror questionnaires.  (See Section 4.60(d)(15).) Colorado appellate courts have not addressed the constitutional implications of this policy or a general constitutional right of access to juror questionnaires.

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C. Grand jury proceedings and records

Generally, “[b]ecause grand jury secrecy is intended to prevent disclosure of what transpired before the grand jury, the confidentiality extends to witness testimony and other evidence presented to the grant jury, as well as transcripts of the grand jury proceedings.” People v. Thompson, 181 P.3d 1143, 1146–47 (Colo. 2008).

Access to grand jury indictments is governed by the rules for “official actions” under the Colorado Criminal Justice Records Act, C.R.S. § 24-72-301, et seq. (“CCJRA”). People v. Thompson, 181 P.3d 1143, 1146–47 (Colo. 2008).  In Thompson, the Court held that even if the indictment contained “factual information that transpired in the grand jury proceedings, the plain language of sections 24-72-301(2) and 24-72-303(1) requires disclosure nonetheless.”  Id. at 1148.  The Court declined to address the argument that the trial court’s sealing of factual allegations in the grand jury indictment violated the United States and Colorado Constitutions.  Id. at 1145, 1148.

In In re P.R. v. Dist. Court, 637 P.2d 346 (Colo. 1981), the Colorado Supreme Court held that the evidentiary phase of a contempt hearing, stemming from a witness’s refusal to answer questions before a grand jury, “may be closed only upon express findings by the respondent court that: (1) a public hearing would create a clear and present danger to the investigation of matters presently pending before the statutory grand jury; and (2) the prejudicial effect of such information on presently pending grand jury matters cannot be avoided by any reasonable alternative less drastic than closure.”  Id. at 353.  In doing so, the court distinguished between grand jury proceedings and contempt hearings.  Id. at 350–51.  The court held that the trial court’s “total closure of the evidentiary phase of the contempt hearing, without a finding of compelling necessity” violated the witness’s due process rights under the Fourteenth Amendment “as well as the constitutional interest of the public and the media in attending a judicial proceeding which is the substantial equivalent of a trial” under both the First Amendment and Colorado constitution.  Id. at 354.  The court also ruled, however, that the “court may hear in camera any testimony relative to the effect of a public hearing on the integrity of grand jury proceedings prior to its ruling on closure, the record of such hearing to be sealed for purposes of appellate review.”  Id. The court made clear that “the burden is upon the party seeking closure to establish the factual basis for the application.”  Id. at 353.

See also In re Matter of 2000-2001 Dist. Grand Jury, 77 P.3d 779 (Colo. App. 2003) (“Although members of the public generally have a right of access to ministerial court records, that right is subject to the rule of grand jury secrecy.”), aff’d, 97 P.3d 921 (Colo. 2004).

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D. Interviewing jurors

In In re Stone, 703 P.2d 1319, 1322 (Colo. App. 1985), the Colorado Court of Appeals ruled that “once the trial process had begun, [the media’s] First Amendment rights did not extend to permit communications with prospective jurors who had been admonished not to discuss the pending case.”  The court stated that “the press, through its news gathering activities, had engaged in conduct which seriously threatened to interfere with a defendant’s due process rights to receive a trial by an impartial jury free of outside influences.”  Id. at 1321.  In that case, during pre-trial proceedings, the prospective jurors were seated at the same table as the criminal defendant and were asked about their views about putting the defendant to death.  Id. at 1320.  Members of the media later contacted four members of the jury who had been preliminarily qualified in order to determine if they had been intimidated by the defendant’s presence and the death penalty voir dire. Id.  The trial court did not impose punitive sanctions against the media, but ordered the respondents to reimburse the parties for costs of four additional days of the criminal trial, because the jury selection process had to be repeated. Id. at 1321.

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VIII. Proceedings involving minors

A. Delinquency

The Colorado Judicial Department’s Public Access to Court Records policy (pdf) excludes from public access all juvenile delinquency court records, unless the court orders otherwise.  (See Section 4.60(b)(4).)

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B. Dependency

The Colorado Judicial Department’s Public Access to Court Records policy (pdf) excludes from public access all dependency and neglect court records, unless the court orders otherwise.  (See Section 4.60(b)(2).)

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C. Other proceedings involving minors

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access certain classes of cases, absent a court order, including adoption, dependency and neglect, judicial bypass, juvenile delinquency, conservatorship or guardianship proceedings for a minor, paternity, and truancy.  (See Section 4.60(b).)  In addition, the Public Access Policy prohibits access to certain kinds of court records, absent a court order, including child abuse investigation reports, which the court determines contain personal or confidential information; certain domestic relations documents, including parenting plans; evaluations and reports filed by a child and family investigator, a child’s legal representative, or relating to the allocation of parental responsibilities; and scholastic achievement data on individuals, among many other categories. (See Section 4.60(d).)

The Colorado Criminal Justice Records Act prohibits the disclosure the name or other identifying information of any child victim of certain enumerated crimes.  C.R.S. § 24-72-304(4.5).

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D. Prohibitions on photographing or identifying juveniles

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access certain classes of cases, absent a court order, including adoption, dependency and neglect, judicial bypass, juvenile delinquency, conservatorship or guardianship proceedings for a minor, paternity, and truancy.  (See Section 4.60(b).)  In addition, the Public Access Policy prohibits access to certain kinds of court records, absent a court order, including child abuse investigation reports that the court determines contains personal or confidential information; certain domestic relations documents, including parenting plans; evaluations and reports filed by a child and family investigator, a child’s legal representative, or relating to the allocation of parental responsibilities; and scholastic achievement data on individuals, among many other categories. (See Section 4.60(d).)

Colorado court system created a policy regarding “expanded media coverage,” which means any photography (including video) or audio recordings of proceedings, which is set forth in Rule 3, Chapter 38 of the Colorado Supreme Court Rules (pdf).  The rule describes the procedural requirements for requesting expanded media coverage access, including a standard request form, sets forth standards for a judge to authorize expanded coverage, and also describes restrictions on expanded media coverage.  Although Rule 3 does contain some restrictions on the subject matter for photography, the Rule does not specifically prohibit photographs of juveniles.

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E. Minor testimony in non-juvenile courts

Colorado appellate courts have not addressed the public right of access to minor testimony in non-juvenile courts.

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

Colorado appellate courts have not addressed the public right of access to tribal courts.

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B. Probate

The Colorado Judicial Department’s Public Access to Court Records policy (pdf) excludes from public access “Probate Protected Proceedings,” including: Conservatorship-Adult or Minor; Conservatorship/Guardianship-Adult or Minor; Foreign Protected Proceeding; Guardianship-Adult or Minor; Other; Registration of Foreign Order; Single Transaction; and Uniform Veterans’ Guardianship Act. (See Section 4.60(b)(7).)

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C. Competency and commitment proceedings

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access certain case classes and case types, absent a court order, including “mental health” cases, and conservatorship or guardianship proceedings for adults or minors.  (Section 4.60(b)(5) & (7).)  In addition, the Public Access Policy excludes from public access certain court records, absent a court order, including “[m]edical and mental health documents prepared by a medical or mental health provider,” and “[p]sychological and intelligence test documents.”  (Section 4.60(d)(17) & (25).)

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D. Attorney and judicial discipline

In In re Requests for Investigation of Attorney E., 78 P.3d 300 (Colo. 2003), the Colorado Supreme Court considered the First Amendment implications of entering a protective order restricting dissemination of FBI investigation materials that focused on misconduct of two judges. The court concluded that “the protective order issued in this case pursuant to C.R.C.P. 251.31(e) for ‘good cause’ shown does not offend the First Amendment.  Although there may be a legitimate public interest in an FBI investigation of two judges because of their positions as governmental officials, we hold that the two part balancing test” set forth in Seattle Times Co. v. Rinehart, 467 U.S. 20 (1984) and Bowlen v. District Court, 733 P.2d 1179 (Colo. 1987), “weights in favor of the protective order.”  In re Requests for Investigation of Attorney E., 78 P.3d at 310.

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E. Immigration proceedings

Not applicable.

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F. Other proceedings

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) excludes from public access certain case classes and case types, absent a court order. Those case classes and case types include: (1) adoption, (2) dependency and neglect, (3) judicial bypass, (4) juvenile delinquency, (5) mental health, (6) paternity, (7) probate protected proceedings, (8) relinquishment, and (9) truancy. (See Section 4.60(b).)

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X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

Colorado appellate courts have not addressed the media’s standing to challenge third-party gag orders.

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B. Gag orders on the press

The Colorado Supreme Court upheld a prior restraint order prohibiting the media from publishing transcripts of a confidential evidentiary hearing in the Kobe Bryant rape case, which had been mistakenly circulated by the court reporter to the media.  People v. Bryant, 94 P.3d 624 (Colo. 2004).  The hearing concerned the sexual conduct of the alleged rape victim and was held for the trial court to determine whether such evidence would be admissible under Colorado’s rape shield statute, which deems such evidence presumptively irrelevant to the criminal trial.  Id. at 630, 636.  The court recognized that prior restraint was an extraordinary remedy, with a heavy presumption against its constitutional validity, but found that the state “has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims’ privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.” Id. at 628, 632.  Although the media had already widely reported on the alleged victim’s sexual conduct, the court determined, after reviewing the transcripts, that publication “would cause great and certain harm to a state interest of the highest order” for three reasons: (1) the testimony concerned graphic detail that might be irrelevant to the trial and was under oath, which added a “level of official legitimacy and detail to the information that does not attend press reports,” (2) the state’s interests involved the victim’s privacy interest as well as the reporting and prosecution of this and other sexual assault cases, and (3) the transcripts were still private and had not been published by any media outlet.  Id. at 636–37.

Three justices dissented, arguing that the majority “overemphasizes the abstract importance of the purposes served by the rape shield statute and minimizes the impact that the information already available to the public about this alleged victim’s past sexual conduct has on the alleged victim’s privacy interests, at least insofar as they are protected by the rape shield statute.”  Id. at 642 (Bender, J., dissenting).  The dissenters also stated that the majority “virtually ignores the First Amendment guarantee that in all but the most extreme circumstances the media must be free to decide what it may or may not publish. . . .”  Id. at 639.

[W]here truthful information of public importance is lawfully obtained by the media, a prior restraint may only be issued where publication will inevitably, directly, and immediately harm a state interest of the highest order.  This does not mean that if the interest the state asserts is compelling in the abstract the government may issue a prior restraint to protect it.  Rather, the government must prove that in the particular circumstances of a given case, the threat to a government interest is so great, so grave, and so certain that it cannot be protected by any means other than a prior restraint.  If publication of the information in question does not pose an immediate threat, a prior restraint amounts to nothing more than government censorship.

Id. at 639. The dissenters recognized the state’s interest in encouraging the reporting, prosecution, and deterrence of sexual assault, but “reluctantly conclude[d] that the facts available to the public have irretrievably compromised this alleged victim’s privacy interests,” and that the “state cannot salvage its interest in encouraging future victims to report sexual assaults by restraining publication of the transcripts in this case.”  Id. at 643.  “Because the prior restraint issued in this case can accomplish nothing more than preventing, at best, incremental harm to the interests protected by the rape shield statute, I conclude that the district court has not overcome the heavy presumption against the constitutionality of prior restraints.”  Id.

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C. Gag orders on participants

Colorado appellate courts have not addressed the constitutionality of, or other legal justifications for, gag orders.  See, e.g., Tonnessen v. Denver Publ’g Co., 5 P.3d 959, 962, 964, 967 (Colo. App. 2000) (recounting that the trial court issued a gag order).

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D. Interviewing judges

The Colorado Judicial Branch’s public information officer is the gatekeeper for judges throughout the state, and reporters who have individual requests are encouraged to start with the public information officer.

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XI. Other issues

A. Interests often cited in opposing a presumption of access

In general, the fact that a civil court “file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of that entire file pursuant to C.R.C.P. 121, § 1-5.  Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996); see also In re Marriage of Purcell, 879 P.2d 468, 469 (Colo. App. 1994) (affirming the trial court’s denial of a motion to the record that the parties claimed contained “‘extremely personal, private, and confidential matters,’” including financial affidavits and a separation agreement). Likewise, “prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.”  Id.; see also Doe v. Heitler, 26 P.3d 539, 544 (Colo. App. 2001) (citing Anderson).

A “heightened expectation of privacy or confidentiality in court records has been found to exist only in those limited instances in which an accusation of sexual assault has been made, or in which trade secrets, potentially defamatory material, or threats to national security may be implicated.”  Anderson, 924 P.2d at 1126 (citing out-of-jurisdiction cases).

Colorado law and court access policies provide strong protections for the privacy of sexual assault victims and minors.  See C.R.S. § 24-72-304(4)–(4.5) (prohibiting the release of the name and identifying information for child victims or victims of sexual assault); People v. Bryant, 94 P.3d 624 (Colo. 2004) (upholding a prior restraint preventing the media from publishing transcripts of a confidential evidentiary hearing in the Kobe Bryant rape case, which had been mistakenly circulated by the court reporter to the media);Chief Justice Directive 05-01, as amended, containing Colorado Judicial Department’s Public Access to Court Records policy (pdf) (Section 3.10, restricting access to court records containing a charge of sexual assault or involving a child victim, until victim identifying information has been redacted).

The Colorado Judicial Department’s Public Access to Court Records policy (“Public Access Policy”) (pdf) states that it seeks to “maximize[] accessibility to court records” while protecting “individual privacy rights and interests,” “proprietary business information,” and “individuals from the use of outdated or inaccurate information,” among other considerations.  (Section 1.00(a).)

The Public Access Policy categorically excludes certain court records from the public, absent a court order, including: (1) audio or video recordings collected, received, and maintained by the court (excluding audio and video recordings of court proceedings); (2) birth certificates; (3) child abuse investigation reports, which the court finds contain personal or confidential information; (4) credit reports; (5) death certificates; (6) deposited wills; (7) domestic relations records, including financial statements, financial affidavits, financial supporting documents, memoranda of understanding, parenting plans, qualified domestic relations order, and separation agreements, (8) driver history reports from the Department of Revenue, (9) drug/alcohol treatment documents, evaluations, and reports; (10) evaluations and reports filed by a child and family investigor, a child’s legal representative, or relating to the allocation of parental responsibilities; (11) files, fields, and codes concerning the deliberative process; (12) genetic testing information; (13) HIV/AIDS testing information; (14) items that are illegal to possess; (15) juror questionnaires; (16) materials or exhibits that are dangerous or contraband; (17) medical and mental health documents prepared by a medical or mental health provider; (18) medical marijuana registry applications or cards; (19) motions to proceed in forma pauperis or applications for public defenders or for court-appointed counsel or a guardian ad litem; (20) National Crime Information Center or Colorado Crime Information Center reports; (21) paternity tests; (22) presentence reports; (23) probation chronological records (narratives); (24) probation records obtained through a release of information signed by the probationer; (25) psychological and intelligence test documents; and (26) scholastic achievement data on individuals.  (SeeSection 4.60(d).)

In addition, the Public Access Policy prohibits access to court records in certain classes and types of cases, absent a court order, including: (1) adoption; (2) dependency and neglect; (3) judicial bypass; (4) judicial delinquency; (5) mental health; (6) paternity; (7) probate protected proceedings; (8) relinquishment; and (9) truancy.

A party seeking to proceed anonymously (under a pseudonym) “must show that he or she has a substantial privacy right that outweighs the ‘customary and constitutionally-embedded presumption of openness in judicial proceedings.’”  Doe, 26 P.3d at 541.  To determine whether such a showing has been made, courts consider: “[w]hether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or to innocent non-parties; whether the action is against a governmental or a private party; whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; and the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.”  Id.

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B. Cameras and other technology in the courtroom

The Colorado court system’s policy for “expanded media coverage,” which means any photography (including video) or audio recordings of proceedings, is set forth in Rule 3, Chapter 38 of the Colorado Supreme Court Rules (pdf).  The rule describes the procedural requirements for requesting expanded media coverage access, including a standard request form, sets forth standards for a judge to authorize expanded coverage, and also describes restrictions on expanded media coverage.

Rule 3 only permits one video camera in a courtroom at a time, as well as one still photographer at a time, and prohibits the use of extra lighting, including flashes. Tripods are permitted but cannot be moved while court is in session. The media are solely responsible for making pooling arrangements.

Colorado courts have their own audio recording system, which the media may access, but media may also receive permission to record the audio of court sessions if the court’s system is not “technically suitable,” if the additional microphones and wires are unobtrusive, and if the equipment does not interfere with the proceedings.

Rule 3 also prohibits expanded media coverage of (1) pretrial hearings in criminal cases, except advisements and arraignments, (2) jury voir dire, (3) audio recording or close-up photography of bench conferences or communications between counsel and client, or co-counsel, (4) in camera hearings, or (5) close-up photography of jurors.

In reviewing a request for expanded media coverage, the judge must consider (1) whether there is a reasonable likelihood that the expanded media coverage would interfere with the rights of the parties to a fair trial, (2) whether there is a reasonable likelihood that expanded media coverage would “unduly detract from the solemnity, decorum and dignity of the court,” and (3) whether expended media coverage would “create adverse effects which would be greater than those caused by traditional media coverage.” Rule 3(a)(2).

The standard request form requires the member of the media seeking access to agree to comply with the court’s orders and all criteria set forth in Rule 3, which includes a statement that the media “may not appeal, or seek review by original proceeding, the granting or denial of expanded media coverage.”  Rule 3(a)(6)(D).

Notwithstanding Rule 3, individual judges may fashion special rules for media coverage of individual cases, as needed.

The expanded media coverage policy does not address live blogging or the use of social media from court rooms.  Whether those activities will be permitted depends on the individual policies of each judicial district (see, e.g., Order 11-01 Regarding the Use of Portable Electronic Devices in the Courts of the Fifth Judicial Districtand, sometimes notwithstanding district-wide policies, each individual judge.  Members of the media with questions about using electronic devices in court are encouraged to contact the public information officer for the Colorado Judicial Branch (rather than the individual presiding judge) in advance of any court proceeding.

The Colorado Supreme Court and Court of Appeals live stream their sessions.

See generally In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465 (Colo. 1956) (discussing favorably and at length the issue of cameras and microphones in the courtroom, and rejecting common arguments against expanded media coverage; “I am . . . certain that the vast majority of those supporting continuance of Canon 35 [which prescribed a blanket exclusion from courts on photography and other recording equipment] have failed, neglected, or refused to expose themselves to the information, evidence, and demonstrations of progress which are available in this field. I am also satisfied that they are unfamiliar with the actual experiences and recommendations of those who have permitted supervised coverage by photographers, radio and television of various stages of court proceedings.”).

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C. Tips for covering courts in the jurisdiction

The Colorado Judicial Branch website has a page dedicated to the media (https://www.courts.state.co.us/Media/Index.cfm). The page contains contact information for the court’s public information officer, educational resources, including a primer on Colorado courts (pdf), and links to the courts’ rules regarding photography and audio and video recordings in the courtroom (pdf).  The website also has information about accessing court records, press releases, media alerts, recent orders and opinions of interest, and judge appointments.

The Colorado court system’s policy for “expanded media coverage,” which means any photography (including video) or audio recordings of proceedings, is set forth in Rule 3, Chapter 38 of the Colorado Supreme Court Rules (pdf).  The rule describes the procedural requirements for requesting expanded media coverage access, including a standard request form, sets forth standards for a judge to authorize expanded coverage, and also describes restrictions on expanded media coverage.

Rule 3 also prohibits expanded media coverage of (1) pretrial hearings in criminal cases, except advisements and arraignments, (2) jury voir dire, (3) audio recording or close-up photography of bench conferences or communications between counsel and client, or co-counsel, (4) in camera hearings, or (5) close-up photography of jurors.

In reviewing a request for expanded media coverage, a judge must consider (1) whether there is a reasonable likelihood that the expanded media coverage would interfere with the rights of the parties to a fair trial, (2) whether there is a reasonable likelihood that expanded media coverage would “unduly detract from the solemnity, decorum and dignity of the court,” and (3) whether expended media coverage would “create adverse effects which would be greater than those caused by traditional media coverage.” Rule 3(a)(2).

The standard request form requires the member of the media seeking access to agree to comply with the court’s orders and all criteria set forth in Rule 3, which includes a statement that the media “may not appeal, or seek review by original proceeding, the granting or denial of expanded media coverage.”  Rule 3(a)(6)(D).

The expanded media coverage policy does not address live blogging or the use of social media from court rooms.  Whether those activities will be permitted depends on the individual policies of each judicial district (see, e.g., Order 11-01 Regarding the Use of Portable Electronic Devices in the Courts of the Fifth Judicial Districtand, sometimes notwithstanding district-wide policies, each individual judge.  Members of the media with questions about using electronic devices in court are encouraged to contact the public information officer for the Colorado Judicial Branch (rather than the individual presiding judge) in advance of any court proceeding.

The Colorado Supreme Court and Court of Appeals live stream their sessions. Reporters who want to live-blog or tweet about a Supreme Court argument shouldn’t be surprised if the Supreme Court justices request that the report do so off-site, based on the live stream.

For high-profile cases, courts will fashion rules to handle a large influx of media.  For the trial of the Aurora movie theater shooter in 2015, for example, the trial was live-streamed with a fixed camera, but reporters were not permitted to live blog or tweet from the courtroom.

The Colorado Judicial Branch’s public information officer is the gatekeeper for judges throughout the state, and reporters who have individual requests are encouraged to start with the public information officer.

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