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Public matters in a private diary are not public records

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    News Media Update         COLORADO         Freedom of Information    

Public matters in a private diary are not public records

  • The Supreme Court of Colorado refused to allow a trial court to examine a county manager’s diary, which contains notes on both public and private matters, to determine if it is a public record.

Jan. 6, 2004 — A trial court cannot review a county manager’s diary to determine if it is a public record under the state’s open records law, the Supreme Court of Colorado ruled last month. When a document is held in a public official’s private capacity, the court held, a plaintiff must first show that the document is likely to be public record before a trial court can review it.

Montrose County Manager Dennis Hunt used excerpts from his personal diary in testifying at an August 2002 termination review hearing to support his decision to fire the county’s airport manager the previous May. An outline of events leading to the termination was made public, including edited excerpts from the diary.

At the hearing, Hunt admitted that the diary was both a personal and professional log.

Following the hearing, The Montrose Daily Press requested access to the entire diary, under the Colorado Open Records Act. Hunt rejected the request, but offered to allow a neutral third party to review the diary and give the paper excerpts related to the termination. The paper rejected the offer and filed suit.

Judge J. Steven Patrick of the Montrose County District Court ordered Hunt to produce the diary so the court could examine it and determine if it was a public record under the act. Hunt appealed the order to the Supreme Court of Colorado.

In its ruling, announced Dec. 15, the supreme court held that the initial burden was on the newspaper “to make a threshold showing that the document is likely a public record.” Because it is unclear whether the document was held by a government official in a public or private capacity, the burden of proof is on the requestor, and not the custodian of the records, the court held.

“Placing a greater burden on a party requesting a document that may not be a public record is in harmony with both the intent of CORA and with our previous cases protecting individuals’ private documents,” Justice Alex Martinez wrote for the unanimous court.

John A. Brooks, the attorney for the newspaper, said he is reviewing the ruling to see if additional steps can be taken to obtain the diary, including asking the supreme court to reconsider its ruling.

(Wick Communications Co. v. Montrose County Board of County Commissioners; Media Counsel: John A. Brooks, Brooks & Brooks, LLC, Montrose) GP

© 2004 The Reporters Committee for Freedom of the Press

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