Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, September 6, 2005

Colorado Supreme Court Schedules Oral Argument in Columbine Diaries Case

The Colorado Supreme Court will hear oral argument September 13th in the case of Denver Post v. Cook, to decide whether diaries and other records made by Dylan Klebold and Eric Harris, the two teenagers who engineered the Columbine High School shootings in 1999, should be released to the public.

The Colorado Court of Appeals opinion reads in part, "The trial court concluded that the recordings were not “criminal justice records” merely because the JCSO possessed them, that the specific items sought by the Post were not “criminal justice records,” and, accordingly, that CCJRA did not govern their release and disclosure.  On January 29, 2004, we issued an opinion in which we held that the recordings were public records subject to CCJRA, but remanded the matter to the trial court for a determination of whether, on the date of the Post’s request, the JCSO was holding the recordings “for use in the exercise of functions required or authorized by law or administrative rule” under § 24-72-302(4), C.R.S. 2003.  The Post filed a petition for rehearing, arguing that we were incorrect in concluding that the recordings were criminal justice records only for so long as they were held for the purposes enunciated by CCJRA. We requested that defendants file a response to that petition.

Upon consideration of the original briefs, the petition for rehearing, and the response to that petition, we withdraw the prior opinion but again remand the case to the trial court for further proceedings. At the outset, we note that, with exceptions not applicable here, property seized by law enforcement officials remains the property of its owner prior to the seizure....It is clear that the recordings are not, and have never been, the property of the JCSO. As to the Klebolds, this issue was previously determined in Klebold v. Search & Seizures, (Colo. App. No. 01CA1240, May 16, 2002)(not published pursuant to C.A.R. 35(f)), in which the family requested the return of tapes and documents, some or all of which are the subject of this proceeding.  The JCSO disclaims ownership of the recordings....We next address whether the recording are "criminal justice records" under CCJRA. We conclude that they are not. We further conclude, however, that they are public records...The custodian may deny the right of inspection of the following records, unless otherwise provided by law, on the ground that disclosure to the applicant would be contrary to the public interest:

          (I) Any records of the investigations conducted by any sheriff, prosecuting attorney, or police department, any records of the intelligence information or security procedures of any sheriff, prosecuting attorney, or police department, or any investigatory files compiled for any other law enforcement purpose.

(Emphasis added.)

CORA excludes from its definition of “public records,” among other things, criminal justice records.”  Section 24-72-202(6)(b)(I), C.R.S. 2003.  This exclusion of “criminal justice records” dates to the adoption of CCJRA. ..Colo.Sess. Laws 1977, ch. 340, §§ 1, 2.  The provision of CORA relating to investigative records dates to the adoption of CORA. Colo.Sess. Laws 1968 , ch. 66, § 4.  The amendment of CORA excluding “criminal justice records,” while still leaving untouched the provision in CORA relating to investigative files, is some indication that investigative files are not included in “criminal justice records.” Further, CORA also limits disclosure of many other categories of information held by public agencies for the benefit of the agency.  These limitations include, among others: (1) test questions and scoring keys; (2) details of research projects; (3) real estate appraisals; and (4) market analysis data. Section 24-72-204(2)(a)(II)-(V), C.R.S. 2003.

More significantly, unlike CCJRA, CORA recognizes privacy interests of private parties in public records by prohibiting disclosure of some information to anyone other than the “person in interest.”  Section 24-72-204(3), C.R.S. 2003.  This prohibition includes, by way of example: (1) medical and mental health information; (2) personnel files; (3) letters of reference; (4) trade secrets, privileged information, and confidential commercial or financial information; (5) student telephone and address information; and (6) records protected by a common law governmental or deliberative process privilege.  Section 24-72-204(3)(a)(I)-(IV), (VI), (XIII), C.R.S. 2003.  A “`[p]erson in interest’ means and includes the person who is the subject of a record or any representative designated by said person; except that, if the subject of the record is under legal disability, [it] means and includes his parent or duly appointed legal representative.” Section 24-72-202(4), C.R.S. 2003.  Exemptions from disclosure are to be narrowly construed. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150(Colo.App. 1998).  This recognition of privacy interests is further support for the proposition that highly personal and confidential information, regardless of ownership, may become a “public record” within the meaning of CORA.  In addition, our supreme court, in dicta, has recognized that a constitutional right to privacy may likewise limit the disclosure of public records. Wick Communications Co. v. Montrose Bd. of County Comm’rs, 81 P.3d 360, 365 n.4 (Colo.2003); see also In re Bd. of County Comm’rs, ___ P.3d ___ (Colo. App. No. 03CA0074, July 17, 2003)(cert. granted July 26, 2004).Therefore, we conclude that the disclosure of the recordings is not governed by CCJRA, but rather by CORA, if they are “public records.” We next address the issue of whether the recordings are “public records” under CORA. Whether any document or article of property is, or is a part of, a "public record" depends on whether it is "made, maintained or kept" by the state or political subdivision of the state...The JCSO maintains that the terms...are active terms, that is, that is, they require more than mere storage or possession....[But] according to the Post, storage or possession is sufficient.... 

In Wick Communications, the supreme court “adopted” the three-part test applicable to the federal Freedom of Information Act (FOIA) as the appropriate analysis under CORA, that is, whether the agency (1) improperly (2) withheld (3) a public record.  The court concluded that if the county manager possessed the diary in his official capacity, the diary was a public record subject to CORA.  The court then concluded, under the unique circumstances there presented, that a person requesting disclosure of a private document held by a public official in his or her official capacity has the initial obligation to present evidence that the document is likely a public record subject to disclosure.  The court further concluded that the news organization had failed to fulfill this initial evidentiary obligation to show that the diary was made, maintained, or kept by a public entity because the diary (1) was made by the county manager in his private capacity, (2) was not maintained by the county, and (3) was not kept by the county or by the county manager in his official capacity.  See also In re Bd. of County Comm’rs, supra (private e-mails between county officials on a publicly-owned computer system may be public records). 

Here, there is no dispute that the recordings are the private property of the families and that the JCSO holds them in its official capacity.  There is also no dispute that the recordings were lawfully acquired and were used by the JCSO in the normal course of its investigation of the Columbine tragedy.  Portions of the “basement tapes” were used in the preparation of the sheriff’s final report and in the sentencing hearing of the individual convicted of providing weapons to the boys.  In addition, while the recordings may be severable from the rest of the investigative files, we conclude that that they have become a part of the investigative records “made, maintained, or kept” by the JCSO.

While there are certainly parallels between the recordings and diaries the boys might have wished to keep private, there are also parallels between them and a self-aggrandizing manifesto the boys might have wished, even ached, to be made public. 

We conclude that the recordings are public records subject to the disclosure requirements and limitations of CORA.  The matter must be remanded to the trial court to determine, among other things, whether the recordings are exempt from disclosure pursuant to § 24-72-204(3)(a); whether disclosure of the recordings is contrary to the public interest pursuant to § 24-72-204(2), C.R.S. 2003; and such other matters as may be asserted by the parties affecting whether the recordings should be publicly disclosed. 

Therefore, the case is remanded to the trial court for further proceedings consistent with the views herein expressed."

Read the lower court's entire opinion here.

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