NEWS MEDIA UPDATE · COLORADO · Freedom of Information · Nov. 22, 2005
State high court says Columbine tapes not private
Nov. 22, 2005 · Whether video and audio tapes showing two Columbine High School students’ murder preparations will be disclosed is now a question for the Jefferson County, Colo., sheriff, whose decision can now be reviewed in court, the Colorado Supreme Court held last week.
In another round of court battles over materials relating to the 1999 Columbine High School shootings, the state’s highest court held that the tapes — referred to as “the basement tapes” — are not private property and are instead public records under the Colorado Criminal Justice Records Act (CCJRA). Disclosure of criminal justice records in Colorado is at the discretion of the county sheriff overseeing the investigation, who must weigh the parties’ privacy interests and the need for investigative secrecy against the public’s interest in the materials.
“Because the [office of the] Sheriff in its public capacity validly obtained and used the recordings in performance of its public function to investigate the commission of crimes at Columbine High School by Eric Harris and Dylan Klebold, we hold that they are criminal justice records subject to the CCJRA’s inspection provisions.” Justice Gregory J. Hobbs, Jr. wrote in the Nov. 15 opinion of the unanimous court.
The basement tapes were seized by the sheriff in searches conducted after Harris and Klebold shot and killed 13 people and wounded 21 others, before killing themselves at Columbine High School on April 20, 1999. The Harris and Klebold families have argued that the materials, taken from their homes, should remain private.
“To a large extent, this is a fight over principle,” said Steven Zansberg, an attorney for The Denver Post, which sued for the records. “There are things taken that haven’t been made public yet. We were forced to litigate — we didn’t think there needed to be litigation, and we’re glad the Colorado Supreme Court unanimously agreed with the Denver Post‘s position.”
The Post argued that the basement tapes should not be categorized as private records, which would not available under the Colorado Open Records Act, but instead should be labeled as criminal justice records, giving the county sheriff the subjective discretion to balance the parties’ interests, with the result subject to judicial review.
Once the period for parties to petition for a rehearing in the Supreme Court passes — Dec. 13 is the deadline — Jefferson County Sheriff Ted Mink will have three days to determine whether to release the tapes. At that point, the Post will decide whether it is necessary to seek judicial review of the sheriff’s decision, Zansberg said. “This case very much shows that even though it can be long, drawn out and costly, the public does have a real right to review records in Colorado,” he said.
The case shows that public access to information available in this situation overrides privacy concerns to the families, noted Ed Otte, executive director of the Colorado Press Association. “The more information that gets out . . . the more it can be studied and the more beneficial it will be.”
More than 17,000 pages of records related to the Columbine shootings have been made public, Zansberg said. In December 1999, the “basement tapes” were shown to some journalists, who provided extensive coverage of their content which is still available online, making this a principled fight, he said.
“There is much more information to be released, even today, including what the Jefferson County Sheriff has under his jurisdiction,” Otte said.
(Harris v. Denver Post Corp., Media Counsel: Steven D. Zansberg, Denver, Colo.) — CZ