By Dustin Berger
“Public business is the public’s business.”
Denver Publ. Co. v. Bd. of County Comm’rs of the County of Arapahoe, Colo., 121 P.3d 190, 196 (Colo. 2005) (quoting Legislative Council of the Colorado General Assembly, Open Public Records for Colorado 1-2 (Research Publ’n No. 126, 1967)).
On October 14, 2008, the Denver District Court dismissed a case in which The Denver Post had sought access to billing records for Colorado Governor Bill Ritter’s private mobile phone.
In Denver Post Corp. v. Bill Ritter, Jr., The Denver Post had sought the billing records under the Colorado Open Records Act (“the Act”), which allows any person to access public documents. Colo. Rev. Stat. § 24-72-201 (2008). Although Governor Ritter conceded that he had used his personal cell phone to conduct public business, he argued that the billing records were not public records under the Act. Denver Post Corp. v. Bill Ritter, Jr., No. 08CV7083 (D. Denver Oct. 14, 2008) (ordering dismissal).
Judge Hoffman agreed. He concluded that a person requesting records under the Act had a duty to show that the requested records were “likely” to be public records under the Act’s definition. Until this showing is made, a member of the public may not even request that a court examine the documents in camera to determine if they are public records. The judge concluded that The Denver Post had not made this showing under the Act’s definition of public records.
The Act defines public records as “all writings made, maintained, or kept by the state, any agency, institution, a nonprofit corporation . . . and held . . . for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.” Colo. Rev. Stat. § 24-72-202(6)(a)(I) (2008). Further, when a public official rather than a public agency holds documents that a member of the public requests under the Act, the requestor bears the burden of showing the documents are likely to be public records. Denver Publ., 121 P.3d 190, 199 (Colo. 2005).
The judge reasoned that this definition required The Denver Post to show that (1) Governor Ritter made, maintained, or kept the records and (2) did so for official or public use. When requested documents are in the hands of a public official, rather than a public agency, a court must first determine whether the records were kept in a private or public capacity. Denver Publ., 121 P.3d 190, 199 (Colo. 2005). Although Judge Hoffman concluded that Governor Ritter did keep the records, he concluded that he did not do so in a public capacity because he kept the records, like all people do, merely as a billing record. Therefore, the court granted Governor Ritter’s motion to dismiss.
This case exemplifies the problem of balancing the privacy of public officials against the needs for public disclosure of the public business. The Denver Post justifiably fears that decisions like this one may create a zone of secrecy allowing public officials to conduct public business in private through the avoidance of taxpayer-owned technology equipment. See Felisa Cardona, Access to Ritter's phone data denied, The Denver Post, Oct. 15, 2008, at B01, available at http://tinyurl.com/cxuf83. However, according to the Colorado Supreme Court, the General Assembly was particularly concerned about the privacy of public officials when it crafted the Act and intentionally used a restrictive definition of public records to ensure that the Act did not trample the privacy of public officials. Denver Publ., 121 P.3d 190, 196-97 (Colo. 2005) (discussing the legislative history of the Act and prior attempts to craft an open records law).
Nonetheless, this interpretation raises two public policy questions. First, does the Act allow public officials a zone of secrecy when they use their private technological resources to conduct public business? Although the Act has stronger privacy protections than other states’ open records laws, the privacy protections are not particularly stringent when requested documents actually contain public business. (For instance, The Denver Post cited the Florida open records law, which defines a “public record” as all records “made or received . . . in connection with the transaction of official business.” Fla. Stat. Ann. § 119.011(12) (2008) (quoted in the Order Granting Defendants’ Motion for Summary Judgment at 4).) Under Denver Publishing Company, if a requesting party shows that her request is “likely” to have been made and kept in a public rather than private capacity, then a court will examine the requested documents in camera to ensure that they indeed meet the definition of public records under the Act prior to release. Denver Publ., 121 P.3d 190, 199 (Colo. 2005). Indeed, even in the present case, the judge concurred that if The Denver Post had sought actual transcripts or recordings of public business that the Governor had conducted using his private mobile phone, these would satisfy the definition of public records in the Act.
The second is whether it is desirable to place the burden of showing that a request is likely to contain public records on the requestor. A member of the public is not likely to have the inside information needed to make the case that a requested document was made in a public rather than a private capacity. But, at least in this case, The Denver Post failed to allege any facts to support the inference that the information in Governor Ritter’s phone bill was made in a public capacity. Therefore, there is no reason, at least as yet, to believe that even the slightest factual basis suggesting that a requested document was made in a public capacity would not survive a motion to dismiss and allow a petitioner to engage in the discovery necessary to prove that the requested documents were public records.