Decision maintains privacy of communications between alleged philandering boss and employee.
In 2002, the Board of Commissioners of Arapahoe County, Colorado hired a private investigator to prepare a report on alleged misconduct of Tracy Baker, the Arapahoe County Clerk and Recorder. The investigator’s report contained, among other things, copies of numerous e-mail messages between Baker and one of his employees. Many of the messages contained “sexually explicit and/or romantic content.”
The Denver Publishing Company, owner of the Rocky Mountain News, requested a copy of the report containing the e-mail messages. Instead of complying with the newspaper’s request, the Board of Commissioners filed a legal action, asking the court to determine whether the requested items could be released. The newspaper intervened, claiming that the e-mail messages had to be released to the public under the Colorado Open Records Act, C.R.S. ยง24-72-201 et seq. (“CORA”). The district court agreed, and ordered disclosure of the full report, including the salacious e-mail messages.
Baker and the employee sought review of the district court’s decision. The appellate court reversed, holding that although the e-mail messages were “public records” as defined under CORA, they should not be released because of their authors’ constitutional right to privacy. The Denver Publishing Company appealed the decision to the Colorado Supreme Court, which affirmed in part and reversed in part.
The Supreme Court held that the appellate court had properly concluded the e-mail messages should not be disclosed, but arrived at that conclusion on different grounds. Instead of invoking a constitutional privacy concern to bar disclosure, the court held that the definition of “public records” under CORA does not include private e-mail correspondence like the messages at issue in the case.
Under the statute, “public records” include “writings made, maintained or kept . . . [by the government] . . . for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.”
The court noted that the inquiry in the case was content-driven: “The content of the messages must address the performance of public functions or the receipt of and expenditure of public funds. Insofar as the messages do not, they remain non-public and outside the scope of CORA.” In this case, the messages at issue were made, maintained or kept by the governmental agency. However, given the content, it was clear that they were not made in connection with official public business. Accordingly, the records were protected from public disclosure.
The Denver Publishing Co. v. Board of County Comm., — P.3d —, 2005 WL 2203157 (Colo., September 12, 2005).