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Colorado Open Records Act (CORA)

(C.R.S. 24-72-201 to 24-72-309)

PART 2

INSPECTION, COPYING, OR PHOTOGRAPHING

Cross references: For provisions concerning the distribution of reports of agencies pursuant to

the "Information Coordination Act", see § 24-1-136; for provisions concerning access to records

pursuant to federal law, see the "Freedom of Information Act", 5 U.S.C. § 552.

24-72-201. Legislative declaration.

It is declared to be the public policy of this state that all public records shall be open for

inspection by any person at reasonable times, except as provided in this part 2 or as

otherwise specifically provided by law.

Source: L. 68: p. 201, § 1. C.R.S. 1963: § 113-2-1.

ANNOTATION

Am. Jur.2d. See 66 Am. Jur.2d, Records and Recording Laws, § 17.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Open records act creates a general presumption in favor of public access to government

documents, exceptions to the act must be narrowly construed, and an agreement by a

governmental entity that information in public records will remain confidential is insufficient to

transform a public record into a private one. Daniels v. City of Commerce City, 988 P.2d 648

(Colo. App. 1999).

Nothing in the expressions of public policy in the law concerning the operation of school

boards and in the open records act conclusively directs that the terms of a settlement agreement

between an outgoing school superintendent and a school district, which allude to unadjudicated

allegations of sexual harassment against the superintendent, must categorically be subject to

public inspection. Pierce v. St. Vrain Valley Sch. Dist., 981 P.2d 600 (Colo. 1999).

Courts guided by legislative intent in construing provisions. In construing the open records

provisions, the courts are guided by the clear legislative intent manifested in the declaration of

policy and the language of the provisions themselves. Denver Publishing Co. v. Dreyfus, 184

Colo. 288, 520 P.2d 104 (1974).

Court considers and weighs public interest.

The limiting language making certain of the open

records provisions applicable except as "otherwise provided by law" is a reference to the rules of

civil procedure and expresses the legislative intent that a court should consider and weigh

whether disclosure would be contrary to the public interest. Martinelli v. District Court, 199 Colo.

163, 612 P.2d 1083 (1980).

Construction of open records law. Open records law is a general act and will not be

interpreted to repeal a conflicting special provision unless the intent to do so is clear and

unmistakable. Uberoi v. Univ. of Colo., 686 P.2d 785 (Colo. 1984) (decided prior to 1985

enactment of § 24-72-202 (1.5)).

Section clearly eliminates any requirement that a person must show a special interest in

order to be permitted access to particular public records. Denver Publishing Co. v. Dreyfus, 184

Colo. 288, 520 P.2d 104 (1974); Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996).

The open records act does not expressly limit access to any records merely because a

person is engaged in litigation with the public agency from which access to records is requested.

People v. Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988).

Official is unauthorized to deny access in absence of specific statutory provision. This

section establishes the basic premise that in the absence of a specific statute permitting the

withholding of information, a public official has no authority to deny any person access to public

records. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Vital statistics records held confidential and exempt from right to inspect. Eugene Cervi &

Co. v. Russell, 31 Colo. App. 525, 506 P.2d 748 (1972), aff'd, 184 Colo. 282, 519 P.2d 1189

(1974).

Police personnel files and staff investigation reports not exempt from discovery. The

open

records provisions do not, ipso facto, exempt the personnel files and the staff investigation

bureau reports of the Denver police department from discovery in civil litigation. Martinelli v.

District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Applied in City & County of Denver v. District Court, 199 Colo. 303, 607 P.2d 985 (1980).

24-72-202. Definitions.

As used in this part 2, unless the context otherwise requires:

(1) "Correspondence" means a communication that is sent to or received by one or more

specifically identified individuals and that is or can be produced in written form,

including, without limitation:

(a) Communications sent via U.S. mail;

(b) Communications sent via private courier;

(1.1) "Custodian" means and includes the official custodian or any authorized person

having personal custody and control of the public records in question.

(1.2) "Electronic mail" means an electronic message that is transmitted between two or

more computers or electronic terminals, whether or not the message is converted to hard

copy format after receipt and whether or not the message is viewed upon transmission or

stored for later retrieval. "Electronic mail" includes electronic messages that are

transmitted through a local, regional, or global computer network.

(1.3) "Executive position" means any nonelective employment position with a state

agency, institution, or political subdivision, except employment positions in the state

personnel system or employment positions in a classified system or civil service system

of an institution or political subdivision.

(1.5) "Institution" includes but is not limited to every state institution of higher

education, whether established by the state constitution or by law, and every governing

board thereof. In particular, the term includes the university of Colorado, the regents

thereof, and any other state institution of higher education or governing board referred to

by the provisions of section 5 of article VIII of the state constitution.

(1.6) "Institutionally related foundation" means a nonprofit corporation, foundation,

institute, or similar entity that is organized for the benefit of one or more institutions and

that has as its principal purpose receiving or using private donations to be held or used

for the benefit of an institution. An institutionally related foundation shall be deemed not

to be a governmental body, agency, or other public body for any purpose.

(1.7) "Institutionally related health care foundation" means a nonprofit corporation,

foundation, institute, or similar entity that is organized for the benefit of one or more

institutions and that has as its principal purpose receiving or using private donations to

be held or used for medical or health care related programs or services at an institution.

An institutionally related health care foundation shall be deemed not to be a

governmental body, agency, or other public body for any purpose.

(1.8) "Institutionally related real estate foundation" means a nonprofit corporation,

foundation, institute, or similar entity that is organized for the benefit of one or more

institutions and that has as its principal purpose receiving or using private donations to

be held or used for the acquisition, development, financing, leasing, or disposition of

real property for the benefit of an institution. An institutionally related real estate

foundation shall be deemed not to be a governmental body, agency, or other public body

for any purpose.

(1.9) "Local government-financed entity" shall have the same meaning as provided in

section 29-1-901 (1), C.R.S.

(2) "Official custodian" means and includes any officer or employee of the state, of any

agency, institution, or political subdivision of the state, of any institutionally related

foundation, of any institutionally related health care foundation, of any institutionally

related real estate foundation, or of any local government-financed entity, who is

responsible for the maintenance, care, and keeping of public records, regardless of

whether the records are in his or her actual personal custody and control.

(3) "Person" means and includes any natural person, including any public employee and

any elected or appointed public official acting in an official or personal capacity, and

any corporation, limited liability company, partnership, firm, or association.

(4) "Person 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, "person in interest" means and includes his parent or duly

appointed legal representative.

(4.5) "Personnel files" means and includes home addresses, telephone numbers, financial

information, and other information maintained because of the employer-employee

relationship, and other documents specifically exempt from disclosure under this part 2

or any other provision of law. "Personnel files" does not include applications of past or

current employees, employment agreements, any amount paid or benefit provided

incident to termination of employment, performance ratings, final sabbatical reports

required under section 23-5-123, C.R.S., or any compensation, including expense

allowances and benefits, paid to employees by the state, its agencies, institutions, or

political subdivisions.

(5) "Political subdivision" means and includes every county, city and county, city, town,

school district, special district, public highway authority, regional transportation

authority, and housing authority within this state.

(6) (a) (I) "Public records" means and includes all writings made, maintained, or kept by

the state, any agency, institution, a nonprofit corporation incorporated pursuant to

section 23-5-121 (2), C.R.S., or political subdivision of the state, or that are described in

section 29-1-902, C.R.S., and held by any local-government-financed entity for use in

the exercise of functions required or authorized by law or administrative rule or

involving the receipt or expenditure of public funds.

(II) "Public records" includes the correspondence of elected officials, except to the

extent that such correspondence is:

(A) Work product;

(B) Without a demonstrable connection to the exercise of functions required or

authorized by law or administrative rule and does not involve the receipt or expenditure

of public funds;

nature or content that the constituent expects that it is confidential or a communication

from the elected official in response to such a communication from a constituent; or

(D) Subject to nondisclosure as required in section 24-72-204 (1).

(III) The acceptance by a public official or employee of compensation for services

rendered, or the use by such official or employee of publicly owned equipment or

supplies, shall not be construed to convert a writing that is not otherwise a "public

record" into a "public record".

(IV) "Public records" means, except as provided in subparagraphs (VIII) and (IX) of

paragraph (b) of this subsection (6), for an institutionally related foundation, an

institutionally related health care foundation, or an institutionally related real estate

foundation, all writings relating to the requests for disbursement or expenditure of funds,

the approval or denial of requests for disbursement or expenditure of funds, or the

disbursement or expenditure of funds, by the institutionally related foundation, the

institutionally related health care foundation, or the institutionally related real estate

foundation, to, on behalf of, or for the benefit of the institution or any employee of the

institution. For purposes of this subparagraph (IV), "expenditure" shall be defined in

accordance with generally accepted accounting principles.

(b) "Public records" does not include:

(I) Criminal justice records that are subject to the provisions of part 3 of this article;

(II) Work product prepared for elected officials. However, elected officials may release,

or authorize the release of, all or any part of work product prepared for them.

(III) Data, information, and records relating to collegeinvest programs pursuant to

sections 23-3.1-225 and 23-3.1-307.5, C.R.S., as follows:

(A) Data, information, and records relating to individual purchasers and qualified

beneficiaries of advance payment contracts under the prepaid expense trust fund and the

prepaid expense program, including any records that reveal personally identifiable

information about such individuals;

(B) Data, information, and records relating to designated beneficiaries of and individual

contributors to an individual trust account or savings account under the college savings

program, including any records that reveal personally identifiable information about

such individuals;

and source codes, utilized or owned by collegeinvest; and

(D) Marketing plans and the results of market surveys conducted by collegeinvest.

(IV) Materials received, made, or kept by a crime victim compensation board or a

district attorney that are confidential pursuant to the provisions of section 24-4.1-107.5.

(V) Notification of a possible nonaccidental fire loss or fraudulent i

nsurance act given to

an authorized agency pursuant to section 10-4-1003 (1), C.R.S.

(VI) For purposes of an institutionally related foundation, any documents, agreements,

or other records or information other than the writings relating to the financial

expenditure records specified in subparagraph (IV) of paragraph (a) of this subsection

(6).

(VII) For purposes of an institution or an institutionally related foundation:

(A) The identity of, or records or information identifying or leading to the identification

of, any donor or prospective donor to an institution or an institutionally related

foundation;

(B) The amount of any actual or prospective gift or donation from a

donor or prospective

donor to an institutionally related foundation;

foundation; or

(D) Agreements or other documents relating to gifts or donations or prospective gifts or

donations to an institution or an institutionally related foundation from a donor or

prospective donor.

(VIII) For purposes of an institutionally related health care foundation, expenditures by

an institutionally related health care foundation to an institution for medical or health

care related programs or services;

(IX) For purposes of an institutionally related real estate foundation, prior to the

completion of any transaction for the acquisition, development, financing, leasing, or

disposition of real property, all writings relating to such transaction;

(X) The information security plan of a public agency developed pursuant to section 24-

37.5-404 or of the department of higher education or an institution of higher education

developed pursuant to section 24-37.5-404.5;

(XI) Information security incident reports prepared pursuant to section 24-37.5-404 (2)

(e) or 24-37.5-404.5 (2) (e); or

(XII) Information security audit and assessment reports prepared pursuant to section 24-

37.5-403 (2) (d) or 24-37.5-404.5 (2) (d).

(6.5) (a) "Work product" means and includes all intra- or inter-agency advisory or

deliberative materials assembled for the benefit of elected officials, which materials

express an opinion or are deliberative in nature and are communicated for the purpose of

assisting such elected officials in reaching a decision within the scope of their authority.

Such materials include, but are not limited to:

(I) Notes and memoranda that relate to or serve as background information for such

decisions;

(II) Preliminary drafts and discussion copies of documents that express a decision by an

elected official.

(b) "Work product" also includes all documents relating to the drafting of bills or

amendments, pursuant to section 2-3-505 (2) (b), C.R.S., but it does not include

the final

version of documents prepared or assembled pursuant to section 2-3-505 (2) (c), C.R.S.

"Work product" also includes all research projects conducted by staff of legislative

council pursuant to section 2-3-304 (1), C.R.S., if the research is requested by a member

of the general assembly and identified by the member as being in connection with

pending or proposed legislation or amendments thereto. However, the final product of

any such research project shall become a public record unless the member specifically

requests that it remain work product. In addition, if such a research project is requested

by a member of the general assembly and the project is not identified as being in

connection with pending or proposed legislation or amendments thereto, the final

product shall become a public record.

(I) Any final version of a document that expresses a final decision by an elected official;

(II) Any final version of a fiscal or performance audit report or similar document the

purpose of which is to investigate, track, or account for the operation or management of

a public entity or the expenditure of public money, together with the final version of any

supporting material attached to such final report or document;

(III) Any final accounting or final financial record or report;

(IV) Any materials that would otherwise constitute work product if such materials are

produced and distributed to the members of a public body for their use or consideration

in a public meeting or cited and identified in the text of the final version of a document

that expresses a decision by an elected official.

(d) (I) In addition, "work product" does not include any final version of a document

prepared or assembled for an elected official that consists solely of factual information

compiled from public sources. The final version of such a document shall be a public

record. These documents include, but are not limited to:

(A) Comparisons of existing laws, ordinances, rules, or regulations with the provisions

of any bill, amendment, or proposed law, ordinance, rule, or regulation; comparisons of

any bills, amendments, or proposed laws, ordinances, rules, or regulations with other

bills, amendments, or proposed laws, ordinances, rules, or regulations; comparisons of

different versions of bills, amendments, or proposed laws, ordinances, rules, or

regulations; and comparisons of the laws, ordinances, rules, or regulations of the

jurisdiction of the elected official with the laws, ordinances, rules, or regulations of other

jurisdictions;

(B) Compilations of existing public information, statistics, or data;

regulations, legislative history, or legislative policy.

(II) This paragraph (d) shall not apply to documents prepared or assembled for members

of the general assembly pursuant to paragraph (b) of this subsection (6.5).

(7) "Writings" means and includes all books, papers, maps, photographs, cards, tapes,

recordings, or other documentary materials, regardless of physical form or

characteristics. "Writings" includes digitally stored data, including without limitation

electronic mail messages, but does not include computer software.

(8) For purposes of subsections (6) and (6.5) of this section and sections 24-72-203 (2)

(b) and 24-6-

402 (2) (d) (III), the members of the Colorado reapportionment commission

shall be considered elected officials.

Source: L. 68: p. 201, § 2. C.R.S. 1963: § 113-2-2. L. 77: (6) amended, p. 1250, § 2,

effective December 31. L. 85: (1.5) added, p. 867, § 1, effective June 6. L. 90: (3)

amended, p. 449, § 21, effective April 18. L. 91: (5) amended, p. 726, § 3, effective

April 20. L. 92: (4.5) added and (7) amended, p. 1103, § 2, effective July 1. L. 94: (1.3)

added, p. 936, § 1, effective April 28; (4.5) amended, p. 832, § 2, effective April 28. L.

96: (1.7) added and (2) and (6) amended, p. 141, § 2, effective April 8; (1), (6), and (7)

amended and (1.1), (1.2), and (6.5) added, p. 1480, § 4, effective June 1. L. 97:

(6)(b)(II)

and (6.5)(b) amended and (6.5)(d) added, p. 1104, §§ 2, 3, effective August 6. L. 98:

(6)(b)(III) added, p. 213, § 3, effective August 5. L. 99: (6.5)(c)(IV) amended, p. 205, §

2, effective March 31. L. 2000: (6)(b)(III) amended, p. 223, § 4, effective March 29;

(6)(b)(IV) added, p. 243, § 8, effective March 29; (6)(a)(I) amended, p. 415, § 6,

effective April 13; (6)(b)(V) added, p. 1736, § 4, effective June 1. L. 2001: (8) added, p.

1075, § 4, effective August 8. L. 2002: (3) amended, p. 643, § 2, effective May 24; (5)

amended, p. 402, § 3, effective August 7. L. 2004: (6)(b)(III) amended, p. 575, § 33,

effective July 1. L. 2005: (1.6), (1.8), (1.9), (6)(a)(IV), (6)(b)(VI), (6)(b)(VII),

(6)(b)(VIII), and (6)(b)(IX) added and (2) amended, pp. 530, 531, §§ 1, 2, 3, effective

May 24; (5) amended, p. 1068, § 15, effective January 1, 2006. L. 2006:

(1.7), (1.8), and

(1.9) amended, p. 1503, § 43, effective June 1; (6)(b)(X), (6)(b)(XI), and (6)(b)(XII)

added, p. 1719, § 2, effective June 6. L. 2007: (6)(b)(X), (6)(b)(XI), and (6)(b)(XII)

amended, p. 917, § 16, effective May 17.

Editor's note: Amendments to subsection (6) by House Bill 96-1029 and Senate Bill 96-212

were harmon

ized.

Cross references: (1) For the legislative declaration contained in the 1996 act amending

subsections (1), (6), and (7) and enacting subsections (1.1), (1.2), and (6.5), see section 1 of

chapter 271, Session Laws of Colorado 1996.

(2) For the legislative declaration contained in the 2002 act amending subsection (3), see

section 1 of chapter 187, Session Laws of Colorado 2002.

(3) For the legislative declaration contained in the 2005 act amending subsection (5), see

section 1 of chapter 269, Session Laws of Colorado 2005.

ANNOTATION

Law reviews. For article, "E-mail, Open Meetings, and Public Records", see 25 Colo. Law. 99

(October 1996).

The courts are not agencies for all purposes of this act. Office of State Court Adm'r v.

Background Info. Servs., Inc., 994 P.2d 420 (Colo. 1999).

Scope of term "personnel files". A public entity may not restrict access to information by

merely placing a record in a personnel file; a legitimate expectation of privacy must exist. Denver

Publishing Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

Information "maintained because of the employer-employee relationship" so as to be exempt

from disclosure under the personnel files exemption must be of the same general nature as an

employee's home address and telephone number or personal financial information; it does not

include records relating to complaints of sexual harassment, gender discrimination, and

retaliation. Such records must be produced, subject to redaction of names of individuals against

whom complaints could not be substantiated. Daniels v. City of Commerce City, 988 P.2d 648

(Colo. App. 1999).

Whether a private entity is a "political subdivision" for purposes of the Colorado Open

Records Act is determined by considering a nonexclusive list of nine factors examining the level

of a public agency's involvement with the private entity. The factors include: (1) The level of

public funding; (2) whether funds were commingled; (3) whether the activity was conducted on

publicly owned property; (4) whether services contracted for were an integral part of the public

agency's chosen decision-making process; (5) whether the private entity was performing a

governmental function or a function the public agency would otherwise perform; (6) the extent of

the public agency's involvement with, regulation of, or control over the private entity; (7) whether

the private entity was created by the public agency; (8) whether the public agency has a

substantial financial interest in the private entity; and (9) for whose benefit the private entity was

functioning. Denver Post Corp. v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).

Autopsy reports are "public records", as defined in this section. Denver Publ'g Co. v.

Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Records of state compensation authority included. State compensation authority is a

statutorily created "political subdivision", which is indistinguishable from any other "political

subdivision" specified in subsection (5) of this section and is, therefore, subject to the state open

records law. Dawson v. State Comp. Ins. Auth., 811 P.2d 408 (Colo. App. 1990).

Documents were public records in custody of stadium district under subsections (1) and

(2) where documents, while never in actual personal control or custody of any employee or

officer of district, were maintained by general contractor of stadium in manner that gave district

full access to documents. Intern. Broth. of Elec. v. Denver Metro., 880 P.2d 160 (Colo. App.

1994).

Police records are not "public records". Police department files and records showing arrests,

convictions, and other information are not public records. Losavio v. Mayber, 178 Colo. 184, 496

P.2d 1032 (1972).

Any record made, maintained, or kept by a criminal justice entity is not a public record.

Materials seized by sheriff's department pursuant to a valid search warrant and held by the

department were not open to inspection as public records. Harris v. Denver Post Corp., 123 P.3d

1166 (Colo. 2005).

Such records may be subject to inspection as criminal justice records. Harris v. Denver Post

Corp., 123 P.3d 1166 (Colo. 2005).

Records of university not included. Reference to "institution" in definition of "public r

ecords" is

not specific enough to demonstrate legislative intent to make open records law applicable to the

university of Colorado. Uberoi v. Univ. of Colo., 686 P.2d 785 (Colo. 1984) (decided prior to

1985 enactment of subsection (1.5)).

A county retirement plan operates as an agency or instrumentality of the county when the

plan has availed itself of public entity tax and health benefits, has used county purchasing

accounts, facilities, and the county seal, is authorized to levy a retirement tax, and has a budget

that is factored into the county budget. Such plan is thereby subject to the open meetings law

and the open records law. Zubeck v. El Paso County Ret. Plan, 961 P.2d 597 (Colo. App. 1998).

Severance payments received pursuant to the city of Colorado Springs transitional

employment program were subject to disclosure because they were not part of employees'

"personnel files". Statutory definition of "personnel files" specifically excludes such amounts.

Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998).

To be a "public record" as defined by subsection (6)(a)(II), an e-mail message must be for

use in the performance of public functions or involve the receipt of public funds. A message

sent in furtherance of a personal relationship does not fall within the definition. The fact that a

public employee or public official sent or received a message while compensated by public funds

or using publicly owned computer equipment is insufficient to make the message a "public

record". Denver Publ'g Co. v. Bd. of County Comm'rs, 121 P.3d 190 (Colo. 2005).

A mixed message that addresses both the performance of public functions and private

matters must be redacted to exclude from disclosure the information that does not address the

performance of public functions. The open records law does not mandate that e-mail records be

disclosed in complete form or not at all. Denver Publ'g Co. v. Bd. of County Comm'rs, 121 P.3d

190 (Colo. 2005).

24-72-203. Public records open to inspection.

(1) (a) All public records shall be open for inspection by any person at reasonable times,

except as provided in this part 2 or as otherwise provided by law, but the official

custodian of any public records may make such rules with reference to the inspection of

such records as are reasonably necessary for the protection of such records and the

prevention of unnecessary interference with the regular discharge of the duties of the

custodian or the custodian's office.

(b) Where public records are kept only in miniaturized or digital form, whether on

magnetic or optical disks, tapes, microfilm, microfiche, or otherwise, the official

custodian shall:

(I) Adopt a policy regarding the retention, archiving, and destruction of such records;

and

(II) Take such measures as are necessary to assist the public in locating any specific

public records sought and to ensure public access to the public records without

unreasonable delay or unreasonable cost. Such measures may include, without

limitation, the availability of viewing stations for public records kept on microfiche; the

provision of portable disk copies of computer files; or direct electronic access via on-

line

bulletin boards or other means.

(2) (a) If the public records requested are not in the custody or control of the person to

whom application is made, such person shall forthwith notify the applicant of this fact,

in writing if requested by the applicant. In such notification, the person shall state in

detail to the best of the person's knowledge and belief the reason for the absence of the

records from the person's custody or control, the location of the records, and what person

then has custody or control of the records.

(b) If an official custodian has custody of correspondence sent by or received by an

elected official, the official custodian shall consult with the elected official prior to

allowing inspection of the correspondence for the purpose of determining whether the

correspondence is a public record.

(3) (a) If the public records requested are in the custody and control of the person to

whom application is made but are in active use, in storage, or otherwise not readily

available at the time an applicant asks to examine them, the custodian shall forthwith

notify the applicant of this fact, in writing if requested by the applicant. If requested by

the applicant, the custodian shall set a date and hour at which time the records will be

available for inspection.

(b) The da

te and hour set for the inspection of records not readily available at the time of

the request shall be within a reasonable time after the request. As used in this subsection

(3), a "reasonable time" shall be presumed to be three working days or less. Such period

may be extended if extenuating circumstances exist. However, such period of extension

shall not exceed seven working days. A finding that extenuating circumstances exist

shall be made in writing by the custodian and shall be provided to the person

making the

request within the three-day period. Extenuating circumstances shall apply only when:

(I) A broadly stated request is made that encompasses all or substantially all of a large

category of records and the request is without sufficient specificity to allow the

custodian reasonably to prepare or gather the records within the three-day period; or

(II) A broadly stated request is made that encompasses all or substantially all of a large

category of records and the agency is unable to prepare or gather the records within the

three-day period because:

(A) The agency needs to devote all or substantially all of its resources to meeting an

impending deadline or period of peak demand that is either unique or not predicted to

recur more frequently than once a month; or

(B) In the case of the general assembly or its staff or service agencies, the general

assembly is in session; or

(III) A request involves such a large volume of records that the custodian cannot

reasonably prepare or gather the records within the three-day period without

substantially interfering with the custodian's obligation to perform his or her other public

service responsibilities.

specifically identified document.

(4) Nothing in this article shall preclude the state or any of its agencies, institutions, or

political subdivisions from obtaining and enforcing trademark or copyright protection

for any public record, and the state and its agencies, institutions, and political

subdivisions are hereby specifically authorized to obtain and enforce such protection in

accordance with the applicable federal law; except that this authorization shall not

restrict public access to or fair use of copyrighted materials and shall not apply to

writings which are merely lists or other compilations.

Source: L. 68: p. 202, § 3. C.R.S. 1963: § 113-2-3. L. 92: (4) added, p. 1104, § 3,

effective July 1. L. 96: (1) to (3) amended, p. 1483, § 5, effective June 1. L. 99:

IP(3)(b)

amended and (3)(b)(III) added, p. 207, § 1, effective March 31.

Cross references: For the legislative declaration contained in the 1996 act amending this

section, see section 1 of chapter 271, Session Laws of Colorado 1996.

ANNOTATION

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Law reviews. For article, "E-mail, Open Meetings, and Public Records", see 25 Colo. Law. 99

(October 1996). For article, "Privacy Rights and Public Records in Colorado: Hiding in Plain

Sight", see 33 Colo. Law. 111 (October 2004).

First amendment does not guarantee the press a constitutional right of special access to

information not available to the public generally. This is true where the information sought is

personal in nature and is to be published primarily for commercial purposes. Eugene Cervi & Co.

v. Russell, 184 Colo. 282, 519 P.2d 1189 (1974).

Court considers and weighs public interest in determining disclosure question. The

limiting language making certain of the open records provisions applicable except as "otherwise

provided by law" is a reference to the rules of civil procedure and expresses the legislative intent

that a court should consider and weigh whether disclosure would be contrary to the public

interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Statutory scheme strikes a balance between the statutory right of the public to inspect and

copy public records and the administrative burdens that may be placed upon government

agencies in responding to open records requests. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App.

1994); Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d 308 (Colo. App.

2004).

By requiring specificity in records requests, spelling out reasonable procedures, and providing

that records requests will not take priority over the entity's previously scheduled work activities,

the entity's policy is consistent with the statutory authorization for "reasonably necessary" rules

and the jurisprudential recognition of the need for balance between the public's right to inspect

public records and the administrative burdens that may be placed on government agencies

responding to such requests. Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97

P.3d 308 (Colo. App. 2004).

Regulations that reasonably restrict the manner of access and do not deny access to public

records do not violate the public records law. Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. App.

1991).

Regulations which limit access to records to minimize the dangers of record alteration

and obliteration are reasonably necessary within the meaning of subsection (1). Tax Data

Corp. v. Hutt, 826 P.2d 353 (Colo. App. 1991).

A computer print-out provides the reader with the same information as would a visual

examination of the same information on a c

omputer screen. Oral communications and microfiche

copies are also readily accessible and meet the statutory requirements concerning reasonable

accessibility. Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. App. 1991).

Nominal research and retrieval fee permitted under subsection (1)(a). Although the opens

records law does not expressly require the payment of a fee to exercise the right of inspection,

legislative history reflects that this omission was intentional. Black v. S.W. Water Conserv. Dist.,

74 P.3d 462 (Colo. App. 2003).

Subsection (2) does not impose an unreasonable burden on a state agency. There is no

obligation to investigate outside the department for the requested documents or to undertake a

special search to locate requested documents. The agency needs only to notify the requesting

party that it has no knowledge of the location of requested records, or to refer such party to the

agency it believes might maintain the records. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App.

1994).

Construction of open records law. Open records law is a general act and will not be

interpreted to repeal a conflicting special provision unless the intent to do so is clear and

unmistakable. Uberoi v. Univ. of Colo., 686 P.2d 785 (Colo. 1984) (decided prior to 1985

enactment of § 24-72-202 (1.5)).

The courts do not have an implied duty to manipulate computer generated data under the

public records act in order to create a new document solely for purposes of disclosure. Office of

State Court Adm'r v. Background Information Servs., Inc., 994 P.2d 420 (Colo. 1999).

Access to court-maintained files involves a fragile balance between the interests of the

public and the protection of individuals who are parties to cases in court. Office of State Court

Adm'r v. Background Information Servs., Inc., 994 P.2d 420 (Colo. 1999).

No implied duty to delete exempt information. The fact that data which is exempt under the

open records law could be altered such that it would qualify as group scholastic achievement

data not subject to an exemption does not create a duty on the part of the school district to do

such alteration. The exceptions to the open records law are unambiguous and do not support a

judicial interpretation of an implied duty. Sargent Sch. Dist. v. Western Servs., 751 P.2d 56

(Colo. 1988).

Records not available to the requesting party at the time of the request because of his

incarceration, must be open to his inspection at a reasonable time when he is no longer

confined. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994).

Was reasonable for court to conclude that a request for written approval or certificat

ion of

an institution as an accredited law school was not an existing document or "writing".

Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994).

Vital statistics records held confidential and exempt from right to inspect. Eugene Cervi &

Co. v. Russell, 31 Colo. App. 525, 506 P.2d 748 (1972), aff'd, 184 Colo. 282, 519 P.2d 1189

(1974).

Claim that transportation contracts entered into between city department of public

utilities and railroad were confidential commercial matters did not preclude disclosure of

contracts under open records act, where governmental body is involved. Freedom News v.

Denver & Rio Grande R. Co., 731 P.2d 740 (Colo. App. 1986).

Federal law, i.e. the Staggers Act of 1980, which provides that certain information in contracts

filed with Interstate Commerce Commission is available only where requested by certain

specified parties does not prohibit public disclosure under open records act of transportation

contracts entered int

o between city and railroad. Freedom News v. Denver & Rio Grande R. Co.,

731 P.2d 740 (Colo. App. 1986).

Privileges for attorney-client communication and attorney work product established by

common law, though incorporated into open r

ecords law, are waived by any voluntary disclosure

by privilege holder to a third person. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo.

App. 1987).

Class record sheet qualifies as "scholastic achievement data on individual persons".

Because the class record sheets with the "Comprehensive Test of Basic Skills" test results

provide individual student scores which directly correspond to individual student names, these

sheets are protected under the open records law as "scholastic achievement data on individual

persons". Sargent Sch. Dist. v. Western Servs., 751 P.2d 56 (Colo. 1988).

Trial court was presented with insufficient evidence to conclude that records were not

"public records". The court's decision was based only on evidence demonstrating that the

records were not maintained by the department of corrections; no evidence was presented

concerning the records of any other agency. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994).

The names of transitional employment program participants and the amounts paid to

them were not exempt from disclosure under the Colorado Open Records Act. Releasing

the total amount paid to employees under the program is inconsistent with the plain language of

the statute. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998).

Records custodian cannot be sanctioned for failure to comply with time limits in

subsection (3)(b) in situations where compliance with a request within those time limits is found

to be a physical impossibility. Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97

P.3d 308 (Colo. App. 2004).

24-72-204. Allowance or denial of inspection - grounds - procedure - appeal -

definitions.

(1) The custodian of any public records shall allow any person the right of inspection of

such records or any portion thereof except on one o

r more of the following grounds or as

provided in subsection (2) or (3) of this section:

(a) Such inspection would be contrary to any state statute.

(b) Such inspection would be contrary to any federal statute or regulation issued

thereunder having the force and effect of law.

order of any court.

(d) Such inspection would be contrary to the requirements of any joint rule of the senate

and the house of representatives pertaining to lobbying practices.

(2) (a) 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;

(II) Test questions, scoring keys, and other examination data pertainin

g to administration

of a licensing examination, examination for employment, or academic examination;

except that written promotional examinations and the scores or results thereof conducted

pursuant to the state personnel system or any similar system shall be available for

inspection, but not copying or reproduction, by the person in interest after the

conducting and grading of any such examination;

(III) The specific details of bona fide research projects being conducted by a state

institution, including, without limitation, research projects undertaken by staff or service

agencies of the general assembly or the office of the governor in connection with

pending or anticipated legislation;

(IV) The contents of real estate appraisals made for the state or a political subdivision

thereof relative to the acquisition of property or any interest in property for public use,

until such time as title to the property or property interest has passed to the state or

political subdivision; except that the contents of such appraisal shall be available to the

owner of the property, if a condemning authority determines that it intends to acquire

said property as provided in section 38-1-121, C.R.S., relating to eminent domain

proceedings, but, in any case, the contents of such appraisal shall be available to the

owner under this section no later than one year after the condemning authority receives

said appraisal; and except as provided by the Colorado rules of civil procedure. If

condemnation proceedings are instituted to acquire any such property, any owner of

such property who has received the contents of any appraisal pursuant to this section

shall, upon receipt thereof, make available to said state or political subdivision a copy of

the contents of any appraisal which the owner has obtained relative to the proposed

acquisition of the property.

(V) Any market analysis data generated by the department of transportation's bid

analysis and management system for the confidential use of the department of

transportation in awarding contracts for construction or for the purchase of goods or

services and any records, documents, and automated systems prepared for the bid

analysis and management system;

(VI) Records and information relating to the identification of persons filed with,

maintained by, or prepared by the department of revenue pursuant to section 42-2-121,

C.R.S.;

(VII) Electronic mail addresses provided by a person to an agency, institution, or

political subdivision of the state for the purposes of future electronic communications to

the person from the agency, institution, or political subdivision; and

(VIII) (A) Specialized details of security arrangements or investigations. Nothing in this

subparagraph (VIII) shall prohibit the custodian from transferring records containing

specialized details of security arrangements or investigations to the office of

preparedness, security, and fire safety in the department of public safety, the governing

body of any city, county, city and county, or other political subdivision of the state, or

any federal, state, or local law enforcement agency; except that the custodian shall not

transfer any record received from a nongovernmental entity without the prior written

consent of such entity unless such information is already publicly available.

(B) Records of the expenditure of public moneys on security arrangements or

investigations, including contracts for security arrangements and records related to the

procurement of, budgeting for, or expenditures on security systems, shall be open for

inspection, except to the extent that they contain specialized details of security

arrangements or investigations. A custodian may deny the right of inspection of only the

portions of a record described in this sub-subparagraph (B) that contain specialized

details of security arrangements or investigations and shall allow inspection of the

remaining portions of the record.

entity, including the state or a political subdivision, that contains specialized details of

security arrangements or investigations, the official custodian shall refer a request to

inspect that public record to the official custodian of the public entity that provided the

record and shall disclose to the person making the request the names of the public entity

and its official custodian to which the request is referred.

(b) If the right of inspection of any record falling within any of the classifications listed

in this subsection (2) is allowed to any officer or employee of any newspaper, radio

station, television station, or other person or agency in the business of public

dissemination of news or current events, it shall be allowed to all such news media.

(a) of

this subsection (2), the custodian shall deny the right of inspection of any materials

received, made, or kept by a crime victim compensation board or a district attorney that

are confidential pursuant to the provisions of section 24-4.1-107.5.

(d) Notwithstanding any provision to the contrary in subparagraph (I) of paragraph (a) of

this subsection (2), the custodian shall deny the right of inspection of any materials

received, made, or kept by a witness protection board, the d

epartment of public safety, or

a prosecuting attorney that are confidential pursuant to section 24-33.5-106.5.

(3) (a) The custodian shall deny the right of inspection of the following records, unless

otherwise provided by law; except that any of the following records, other than letters of

reference concerning employment, licensing, or issuance of permits, shall be available to

the person in interest under this subsection (3):

(I) Medical, mental health, sociological, and scholastic achievement data on individual

persons, other than scholastic achievement data submitted as part of finalists' records as

set forth in subparagraph (XI) of this paragraph (a) and exclusive of coroners' autopsy

reports and group scholastic achievement data from which individuals cannot be

identified; but either the custodian or the person in interest may request a professionally

qualified person, who shall be furnished by the said custodian, to be present to interpret

the records;

(II) (A) Personnel files; but such files shall be available to the person in interest and to

the duly elected and appointed public officials who supervise such person's work.

(B) The provisions of this subparagraph (II

) shall not be interpreted to prevent the public

inspection or copying of any employment contract or any information regarding amounts

paid or benefits provided under any settlement agreement pursuant to the provisions of

article 19 of this title.

(III) Letters of reference;

(IV) Trade secrets, privileged information, and confidential commercial, financial,

geological, or geophysical data, including a social security number unless disclosure of

the number is required, permitted, or authorized by state or federal law, furnished by or

obtained from any person;

(V) Library and museum material contributed by private persons, to the extent of any

limitations placed thereon as conditions of such contributions;

(VI) Addresses and telephone numbers of students in any public elementary or

secondary school;

(VII) Library records disclosing the identity of a user as prohibited by section 24-90-

119;

(VIII) Repealed.

(IX) Names, addresses, telephone numbers, and personal financial information of past or

present users of public utilities, public facilities, or recreational or cultural services that

are owned and operated by the state, its agencies, institutions, or political subdivisions;

except that nothing in this subparagraph (IX) shall prohibit the custodian of records from

transmitting such data to any agent of an investigative branch of a federal agency or any

criminal justice agency as defined in section 24-72-302 (3) that makes a request to the

custodian to inspect such records and who asserts that the request for information is

reasonably related to an investigation within the scope of the agency's authority and

duties. Nothing in this subparagraph (IX) shall be construed to prohibit the publication

of such information in an aggregate or statistical form so classified as to prevent the

identification, location, or habits of individuals.

(X) (A) Any records of sexual harassment complaints and investigations, whether or not

such records are maintained as part of a personnel file; except that, an administrative

agency investigating the complaint may, upon a showing of necessity to the custodian of

records, gain access to information necessary to the investigation of such a complaint.

This sub-subparagraph (A) shall not apply to records of sexual harassment complaints

and investigations that are included in court files and records of court proceedings.

Disclosure of all or a part of any records of sexual harassment complaints and

investigations to the person in interest is permissible to the extent that the disclosure can

be made without permitting the identification, as a result of the disclosure, of any

individual involved. This sub-subparagraph (A) shall not preclude disclosure of all or

part of the results of an investigation of the general employment policies and procedures

of an agency, office, department, or division, to the extent that the disclosure can be

made without permitting the identification, as a result of the disclosure, of any individual

involved.

(B) A person in interest under this subparagraph (X) includes the person making a

complaint and the person whose conduct is the subject of such a complaint.

(X) available for public inspection when such record supports the contention that a

publicly reported, written, printed, or spoken allegation of sexual harassment against

such person is false.

(XI) (A) Records submitted by or on behalf of an applicant or candidate for an executive

position as defined in section 24-72-202 (1.3) who is not a finalist. For purposes of this

subparagraph (XI), "finalist" means an applicant or candidate for an executive position

as the chief executive officer of a state agency, institution, or political subdivision or

agency thereof who is a member of the final group of applicants or candidates made

public pursuant to section 24-6-402 (3.5), and if only three or fewer applicants or

candidates for the chief executive officer position possess the minimum qualifications

for the position, said applicants or candidates shall be considered finalists.

(B) The provisions of this subparagraph (XI) shall not be construed to prohibit the public

inspection or copying of any records submitted by or on behalf of a finalist; except that

letters of reference or medical, psychological, and sociological data concerning finalists

shall not be made available for public inspection or copying.

processes for all executive positions, including, but not limited to, selection processes

conducted or assisted by private persons or firms at the request of a state agency,

institution, or political subdivision.

(XII) Any record indicating that a person has

obtained distinguishing license plates or an

identifying placard for persons with disabilities under section 42-3-204, C.R.S., or any

other motor vehicle record that would reveal the presence of a disability;

(XIII) Records protected under the common law governmental or "deliberative process"

privilege, if the material is so candid or personal that public disclosure is likely to stifle

honest and frank discussion within the government, unless the privilege has been

waived. The general assembly hereby finds and declares that in some circumstances,

public disclosure of such records may cause substantial injury to the public interest. If

any public record is withheld pursuant to this subparagraph (XIII), the custodian shall

provide the applicant with a sworn statement specifically describing each document

withheld, explaining why each such document is privileged, and why disclosure would

cause substantial injury to the public interest. If the applicant so requests, the custodian

shall apply to the district court for an order permitting him or her to restrict disclosure.

The application shall be subject to the procedures and burden of proof provided for in

subsection (6) of this section. All persons entitled to claim the privilege with respect to

the records in issue shall be given notice of the proceedings and shall have the right to

appear and be heard. In determining whether disclosure of the records would cause

substantial injury to the public interest, the court shall weigh, based on the

circumstances

presented in the particular case, the public interest in honest and frank discussion within

government and the beneficial effects of public scrutiny upon the quality of

governmental decision-making and public confidence therein.

(XIV) Veterinary medical data, information, and records on individual animals that are

owned by private individuals or business entities, but are in the custody of a veterinary

medical practice or hospital, including the veterinary teaching hospital at Colorado state

university, that provides veterinary medical care and treatment to animals. A veterinary-

patient-client privilege exists with respect to such data, information, and records only

when a person in interest and a veterinarian enter into a mutual agreement to provide

medical treatment for an individual animal and such person in interest maintains an

ownership interest in such animal undergoing treatment. For purposes of this

subparagraph (XIV), "person in interest" means the owner of an animal undergoing

veterinary medical treatment or such owner's designated representative. Nothing in this

subparagraph (XIV) shall prevent the state agricultural commission, the state agricultural

commissioner, or the state board of veterinary medicine from exercising their

investigatory and enforcement powers and duties granted pursuant to section 35-1-106

(1) (h), article 50 of title 35, and section 12-64-105 (9) (e), C.R.S., respectively. The

veterinary-patient-client privilege described in this subparagraph (XIV), pursuant to

section 12-64-121 (5), C.R.S., may not be asserted for the purpose of excluding or

refusing evidence or testimony in a prosecution for an act of animal cruelty under

section 18-9-202, C.R.S., or for an act of animal fighting under section 18-9-204, C.R.S.

(XV) Nominations submitted to a state institution of higher education for the awarding

of honorary degrees, medals, and other honorary awards by the institution, proposals

submitted to a state institution of higher education for the naming of a building or a

portion of a building for a person or persons, and records submitted to a state institution

of higher education in support of such nominations and proposals;

(XVI) (Deleted by amendment, L. 2003, p. 1636, § 1, effective May 2, 2003.)

(XVII) Repealed.

(XVIII) (A) Military records filed with a county clerk and recorder's office concerning a

member of the military's separation from military service, including the form DD214

issued to a member of the military upon separation from service, that are restricted from

public access pursuant to 5 U.S.C. sec. 552 (b) (6) and the requirements established by

the national archives and records administration. Not

withstanding any other provision of

this section, if the member of the military about whom the record concerns is deceased,

the custodian shall allow the right of inspection to the member's parents, siblings, widow

or widower, and children.

(B) On and after July 1, 2002, any county clerk and recorder that accepts for filing any

military records described in sub-subparagraph (A) of this subparagraph (XVIII) shall

maintain such military records in a manner that ensures that such records will not be

available to the public for inspection except as provided in sub-subparagraph (A) of this

subparagraph (XVIII).

taking appropriate protective actions with regard to records that were filed with or

placed in storage by the county clerk and recorder prior to July 1, 2002, in accordance

with any limitations determined necessary by the county clerk and recorder.

(D) The county clerk and recorder and any individual employed by the county clerk and

recorder shall not be liable for any damages that may result from good faith compliance

with the provisions of this part 2.

(XIX) (A) Except as provided in sub-subparagraphs (B) and (C) of this subparagraph

(XIX), applications for a marriage license submitted pursuant to section 14-2-106,

C.R.S. A person in interest under this subparagraph (XIX) includes an immediate family

member of either party to the marriage application. As used in this subparagraph (XIX),

"immediate family member" means a person who is related by blood, marriage, or

adoption. Nothing in this subparagraph (XIX) shall be construed to prohibit the

inspection of marriage licenses or marriage certificates or to otherwise change the status

of those licenses or certificates as public records.

(B) Any record of an application for a marriage license submitted pursuant to section 14-

2-106, C.R.S., shall be made available for public inspection fifty years after the date that

record was created.

of an application for a marriage license is found, the district court may, in its discretion

and upon good cause shown, order the custodian to permit the inspection of such record.

(b) Nothing in this subsection (3) shall prohibit the custodian of records from

transmitting data concerning the scholastic achievement of any student to any

prospective employer of such student, nor shall anything in this subsection (3) prohibit

the custodian of records from making available for inspection, from making copies,

print-outs, or photographs of, or from transmitting data concerning the scholastic

achievement or medical, psychological, or sociological information of any student to any

law enforcement agency of this state, of any other state, or of the United States where

such student is under investigation by such agency and the agency shows that such data

is necessary for the investigation.

including any institution of higher education, or a school district from transmitting data

concerning standardized tests, scholastic achievement, disciplinary information

involving a student, or medical, psychological, or sociological information of any

student to the custodian of such records in any other such school or school district to

which such student moves, transfers, or makes application for transfer, and the written

permission of such student or his or her parent or guardian shall not be required therefor.

No state educational institution shall be prohibited from

transmitting data concerning

standardized tests or scholastic achievement of any student to the custodian of such

records in the school, including any state educational institution, or school district in

which such student was previously enrolled, and the written permission of such student

or his or her parent or guardian shall not be required therefor.

(d) The provisions of this paragraph (d) shall apply to all public schools and school

districts that receive funds under article 54 of title 22, C.R.S. Notwithstanding the

provisions of subparagraph (VI) of paragraph (a) of this subsection (3), under policies

adopted by the local board of education, the names, addresses, and home telephone

numbers of students in any secondary school shall be released to a recruiting officer for

any branch of the United States armed forces who requests such information, subject to

the following:

(I) Each local board of education shall adopt a policy to govern the release of the names,

addresses, and home telephone numbers of secondary school students to military

recruiting officers that provides that such information shall be released to recruiting

officers unless a student submits a request, in writing, that such information not be

released.

(II) The directory information requested by a recruiting officer shall be released by the

local board of education within ninety days of the date of the request.

(III) The local board of education shall comply with any applicable provisions of the

federal "Family Education Rights and Privacy Act of 1974" (FERPA), 20 U.S.C. section

1232g, and the federal regulations cited thereunder relating to the release of student

information by educational institutions that receive federal funds.

(IV) Actual direct expenses incurred in furnishing this information shall be paid for by

the requesting service and shall be reasonable and customary.

(V) The recruiting officer shall use the data released for the purpose of providing

information to students regarding military service and shall not use it for any other

purpose or release such data to any person or organization other than individuals within

the recruiting services of the armed forces.

(e) (I) The provisions of this paragraph (e) shall apply to all public schools and school

districts. Notwithstanding the provisions of subparagraph (I) of paragraph (a) of this

subsection (3), under policies adopted by each local board of education, consistent with

applicable provisions of the federal "Family Education Rights and Privacy Act of 1974"

(FERPA), 20 U.S.C. sec. 1232g, and all federal regulations and applicable guidelines

adopted thereto, information directly related to a student and maintained by a public

school or by a person acting for the public school shall be available for release if the

disclosure meets one or more of the following conditions:

(A) The disclosure is to other school officials, including teachers, working in the school

at which the student is enrolled who have specific and legitimate educational interests in

the information for use in furthering the student's academic achievement or maintaining

a safe and orderly learning environment;

(B) The disclosure is to officials of a school at which the student seeks or intends to

enroll or the disclosure is to officials at a school at which the student is currently

enrolled or receiving services, after making a reasonable attempt to notify the student's

parent or legal guardian or the student if he or she is at least eighteen years of age or

attending an institution of postsecondary education, as prescribed by federal regulation;

the juvenile justice system and the system's ability to serve effectively, prior to

adjudication, the student whose records are disclosed and if the officials and authorities

to whom the records are disclosed certify in writing that the information shall not be

disclosed to any other party, except as otherwise provided by law, without the prior

written consent of the student's parent or legal guardian or of the student if

he or she is at

least eighteen years of age or is attending an institution of postsecondary education;

(D) The disclosure is to comply with a judicial order or a lawfully issued subpoena, if a

reasonable effort is made to notify the student's parent or legal guardian or the student if

he or she is at least eighteen years of age or is attending a postsecondary institution

about the order or subpoena in advance of compliance, so that such parent, legal

guardian, or student is provided an opportunity to seek protective action, unless the

disclosure is in compliance with a federal grand jury subpoena or any other subpoena

issued for a law enforcement purpose and the court or the issuing agency has ordered

that the existence or contents of t

he subpoena or the information furnished in response to

the subpoena not be disclosed;

(E) The disclosure is in connection with an emergency if knowledge of the information

is necessary to protect the health or safety of the student or other individuals, as

specifically prescribed by federal regulation.

(II) Nothing in this paragraph (e) shall prevent public school administrators, teachers, or

staff from disclosing information derived from personal knowledge or observation and

not derived from a student's record maintained by a public school or a person acting for

the public school.

(3.5) (a) Effective January 1, 1992, any individual who meets the requirements of this

subsection (3.5) may request that the address of such individual included in any public

records concerning that individual which are required to be made, maintained, or kept

pursuant to the following sections be kept confidential:

(I) Sections 1-2-227 and 1-2-301, C.R.S.;

(II) (Deleted by amendment, L. 2000, p. 1337, § 1, effective May 30, 2000.)

(III) Section 24-6-202.

(b) (I) An individual may make the request of confidentiality allowed by this subsection

(3.5) if such individual has reason to believe that such individual, or any member of such

individual's immediate family who resides in the same household as such individual, will

be exposed to criminal harassment as prohibited in section 18-9-111, C.R.S., or

otherwise be in danger of bodily harm, if such individual's address is not kept

confidential in accordance with this subsection (3.5).

(II) A request of confidentiality with respect to records described in subparagraph (I) of

paragraph (a) of this subsection (3.5) shall be made in person in the office of the county

clerk and recorder of the county where the individual making the request resides.

Requests shall be made on application forms approved by the secretary of state, after

consultation with county clerk and recorders. The application form shall provide space

for the applicant to provide his or her name and address, date of birth, and any other

identifying information determined by the secretary of state to be necessary to carry out

the provisions of this subsection (3.5). In addition, an affirmation shall be printed on the

form, in the area immediately above a line for the applicant's signature and the date,

stating the following: "I swear or affirm, under penalty of perjury, that I have reason to

believe that I, or a member of my immediate family who resides in my household, will

be exposed to criminal harassment, or otherwise be in danger of bodily harm, if my

address is not kept confidential." Immediately below the signature line, there shall be

printed a notice, in a type that is larger than the other information contained on the form,

that the applicant may be prosecuted for perjury in the second degree under section 18-8-

503, C.R.S., if the applicant signs suc

h affirmation and does not believe such affirmation

to be true.

(III) The county clerk and recorder of each county shall provide an opportunity for any

individual to make the request of confidentiality allowed by this subsection (3.5) in

person at the time such individual makes application to the county clerk and recorder to

time during normal business hours of the office of the county clerk and recorder. The

county clerk and recorder shall forward a copy of each completed application to the

secretary of state for purposes of the records maintained by him or her pursuant to

subparagraph (I) of paragraph (a) of this subsection (3.5). The county clerk and recorder

shall collect a processing fee in the amount of five dollars of which amount two dollars

and fifty cents shall be transmitted to the secretary of state for the purpose of offsetting

the secretary of state's costs of processing applications

forwarded to the secretary of state

pursuant to this subparagraph (III). All processing fees received by the secretary of state

pursuant to this subparagraph (III) shall be transmitted to the state treasurer, who shall

credit the same to the department of state cash fund.

(IV) The secretary of state shall provide an opportunity for any individual to make the

request of confidentiality allowed by paragraph (a) of this subsection (3.5), with respect

to the records described in subparagraph (III) of paragraph (a) of this subsection (3.5).

The secretary of state may charge a processing fee, not to exceed five dollars, for each

such request. All processing fees collected by the secretary of state pursuant to this

subparagraph (IV) or subparagraph (III) of this paragraph (b) shall be transmitted to the

state treasurer, who shall credit the same to the department of state cash fund.

(V) Notwithstanding the amount specified for any fee in subparagraph (III) or (IV) of

this paragraph (b), the secretary of state by rule or as otherwise provided by law may

reduce the amount of one or more of the fees credited to the department of state cash

fund if necessary pursuant to section 24-75-402 (3), to reduce the uncommitted reserves

of the fund to which all or any portion of one or more of the fees is credited. After the

uncommitted reserves of the fund are sufficiently reduced, the secretary of state by rule

or as otherwise provided by law may increase the amount of one or more of the fees as

provided in section 24-75-402 (4).

which concern an individual who has made a request of confidentiality pursuant to this

subsection (3.5) and paid any required processing fee shall deny the right of inspection

of the individual's address contained in such records on the ground that disclosure would

be contrary to the public interest; except that such custodian shall allow the inspection of

such records by such individual, by any person authorized in writing by such individual,

and by any individual employed by one of the following entities who makes a request to

the custodian to inspect such records and who provides evidence satisfactory to the

custodian that the inspection is reasonably related to the authorized purpose of the

employing entity:

(I) A criminal justice agency, as defined by section 24-72-302 (3);

(II) An agency of the United States, the state of Colorado, or of any political subdivision

or authority thereof;

(III) A person required to obtain such individual's address in order to comply with

federal or state law or regulations adopted pursuant thereto;

(IV) An insurance company which has a valid certificate of authority to transact

insurance business in Colorado as required in section 10-3-105 (1), C.R.S.;

(V) A collection agency which has a valid license as required by section 12-14-115 (1),

C.R.S.;

(VI) A supervised lender licensed pursuant to section 5-1-301 (46), C.R.S.;

(VII) A bank as defined in section 11-101-401 (5), C.R.S., an industrial bank as defined

in section 11-108-101 (1), C.R.S., a trust company as defined in section 11-109-101

(11), C.R.S., a credit union as defined in section 11-30-101 (1), C.R.S., a domestic

savings and loan association as defined in section 11-40-102 (5), C.R.S., a foreign

savings and loan association as defined in section 11-40-102 (8), C.R.S., or a broker-

dealer as defined in section 11-51-201 (2), C.R.S.;

(VIII) An attorney licensed to practice law in Colorado or his representative authorized

in writing to inspect such records on behalf of the attorney;

(IX) A manufacturer of any vehicle required to be registered pursuant to the provisions

of article 3 of title 42, C.R.S., or a designated agent of such manufacturer. Such

inspection shall be allowed only for the purpose of identifying, locating, and notifying

the registered owners of such vehicles in the event of a product recall or product

advisory and may also be allowed for statistical purposes where such address is not

disclosed by such manufacturer or designated agent. No person who obtains the address

of an individual pursuant to this subparagraph (IX) shall disclose such information,

except as necessary to accomplish said purposes.

(d) Notwithstanding any provisions of this subsection (3.5) to the contrary, any person

who appears in person in the office of any custodian of records described in paragraph

(a) of this subsection (3.5) and who presents documentary evidence satisfactory to the

custodian that such person is a duly accredited representative of the news media may

verify the address of an individual whose address is otherwise protected from inspection

in accordance with this subsection (3.5). Such verification shall be limited to the

custodian confirming or denying that the address of an individual as known to the

representative of the news media is the address of the individual as shown by the records

of the custodian.

(e) No person shall make any false statement in requesting any information pursuant to

paragraph (a) or (b) of this subsection (3.5).

(f) Any request of confidentiality made pursuant to this subsection (3.5) shall be kept

confidential and shall not be open to inspection as a public record unless a written

release is executed by the person who made the request.

(g) Prior to the release of any information required to be kept confidential pursuant to

this subsection (3.5), the custodian shall require the person requesting the information to

produce a valid Colorado driver's license or identification card and written authorization

from any entity authorized to receive information under this subsection (3.5). The

custodian shall keep a record of the requesting person's name, address, and date of birth

and shall make such information available to the individual requesting confidentiality

under this subsection (3.5) or any person authorized by such individual.

(4) If the custodian denies access to any public record, the applicant may request a

written statement of the grounds for the denial, which statement shall cite the law or

regulation under which access is denied and shall be furnished forthwith to the applicant.

(5) Except as provided in subsection (5.5) of this section, any person denied the right to

inspect any record covered by this part 2 may apply to the district court of the district

wherein the record is found for an order directing the custodian of such record to show

cause why the custodian should not permit the inspection of such record; except that, at

least three business days prior to filing an application with the district court, the person

who has been denied the right to inspect the record shall file a written notice with the

custodian who has denied the right to inspect the record informing said custodian that

the person intends to file an application with the district court. Hearing on such

application shall be held at the earliest practical time. Unless the court finds that the

denial of the right of inspection was proper, it shall order the custodian to permit such

inspection and shall award court costs and reasonable attorney fees to the prevailing

applicant in an amount to be determined by the court; except that no court costs and

attorney fees shall be awarded to a person who has filed a lawsuit against a state public

body or local public body and who applies to the court for an order pursuant to this

subsection (5) for access to records of the state public body or local public body being

sued if the court finds that the records being sought are related to the pending litigation

and are discoverable pursuant to chapter 4 of the Colorado rules of civil procedure. In

the event the court finds that the denial of the right of inspection was proper, the court

shall award court costs and reasonable attorney fees to the custodian if the court finds

that the action was frivolous, vexatious, or groundless.

(5.5) (a) Any person seeking access to the record of an executive session meeting of a

state public body or a local public body recorded pursuant to section 24-6-402 (2) (d.5)

shall, upon application to the district court for the district wherein the records are found,

show grounds sufficient to support a reasonable belief that the state public body or local

public body engaged in substantial discussion of any matters not enumerated in section

24-6-402 (3) or (4) or that the state public body or local public body adopted a proposed

policy, position, resolution, rule, regulation, or formal action in the executive session in

contravention of section 24-6-402 (3) (a) or (4). If the applicant fails to show grounds

sufficient to support such reasonable belief, the court shall deny the application and, if

the court finds that the application was frivolous, vexatious, or groundless, the court

shall award court costs and attorney fees to the prevailing party. If an applicant shows

grounds sufficient to support such reasonable belief, the applicant cannot be found to

have brought a frivolous, vexatious, or groundless action, regardless of the outcome of

the in camera review.

(b) (I) Upon finding that sufficient grounds exist to support a reasonable belief that the

state public body or local public body engaged in substantial discussion of any matters

not enumerated in section 24-6-402

(3) or (4) or that the state public body or local public

body adopted a proposed policy, position, resolution, rule, regulation, or formal action in

the executive session in contravention of section 24-6-402 (3) (a) or (4), the court shall

conduct an in camera review of the record of the executive session to determine whether

the state public body or local public body engaged in substantial discussion of any

matters not enumerated in section 24-6-402 (3) or (4) or adopted a proposed policy,

position, resolution, rule, regulation, or formal action in the executive session in

contravention of section 24-6-402 (3) (a) or (4).

(II) If the court determines, based on the in camera review, that violations of the open

meetings law occurred, the portion of the record of the executive session that reflects the

substantial discussion of matters not enumerated in section 24-6-402 (3) or (4) or the

adoption of a proposed policy, position, resolution, rule, regulation, or formal action

shall be open to public inspection.

(6) (a) If, in the opinion of the official custodian of any public record, disclosure of the

contents of said record would do substantial in

jury to the public interest, notwithstanding

the fact that said record might otherwise be available to public inspection or if the

official custodian is unable, in good faith, after exercising reasonable diligence, and after

reasonable inquiry, to determine if disclosure of the public record is prohibited pursuant

to this part 2, the official custodian may apply to the district court of the district in which

such record is located for an order permitting him or her to restrict such disclosure of for

the court to determine if disclosure is prohibited. Hearing on such application shall be

held at the earliest practical time. In the case of a record that is otherwise available to

public inspection pursuant to this part 2, after a hearing, the court may, upon a finding

that disclosure would cause substantial injury to the public interest, issue an order

authorizing the official custodian to restrict disclosure. In the case of a record that may

be prohibited from disclosure pursuant to this part 2, after a hearing

, the court may, upon

a finding that disclosure of the record is prohibited, issue an order directing the official

custodian not to disclose the record to the public. In an action brought pursuant to this

paragraph (a), the burden of proof shall be upon the custodian. The person seeking

permission to examine the record shall have notice of said hearing served upon him or

her in the manner provided for service of process by the Colorado rules of civil

procedure and shall have the right to appear and be heard

. The attorney fees provision of

subsection (5) of this section shall not apply in cases brought pursuant to this paragraph

(a) by an official custodian who is unable to determine if disclosure of a public record is

prohibited under this part 2 if the official custodian proves and the court finds that the

custodian, in good faith, after exercising reasonable diligence, and after making

reasonable inquiry, was unable to determine if disclosure of the public record was

prohibited without a ruling by the court.

(b) In defense against an application for an order under subsection (5) of this section, the

custodian may raise any issue that could have been raised by the custodian in an

application under paragraph (a) of this subsection (6).

(7) (a) Except as permitted in paragraph (b) of this subsection (7), the department of

revenue or an authorized agent of the department shall not allow inspection of a person,

other than the person in interest, to inspect information contained in a driver's license

application under section 42-2-107, C.R.S., a driver's license renewal application under

section 42-2-118, C.R.S., a duplicate driver's license application under section 42-2-117,

C.R.S., a commercial driver's license application under section 42-2-403, C.R.S., an

identification card application under section 42-2-302, C.R.S., a motor vehicle title

application under section 42-6-116, C.R.S., a motor vehicle registration application

under section 42-3-113, C.R.S., or other official record or document maintained by the

department under section 42-2-121, C.R.S.

(b) Notwithstanding the provisions of paragraph (a) of this subsection (7), only upon

obtaining a completed requestor release form under section 42-1-206 (1) (b), C.R.S., the

department may allow inspection of the information referred to in paragraph (a) of this

subsection (7) for the following uses:

(I) For use by any government agency, including any court or law enforcement agency,

in carrying out its functions, or any private person or entity acting on behalf of a federal,

state, or local agency in carrying out its functions;

(II) For use in connection with matters of motor vehicle or driver safety and theft; motor

vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance

monitoring of motor vehicles, motor vehicle parts and dealers; motor vehicle market

research activities, including survey research; and removal of non-owner records from

the original owner records of motor vehicle manufacturers;

(III) For use in the normal course of business by a legitimate business or its agents,

employees, or contractors, but only:

(A) To verify the accuracy of personal information submitted by the individual to the

business or its agents, employees, or contractors; and

(B) If such information as so submitted is not correct or is no longer correct, to obtain

the correct information, but only for the purposes of preventing fraud by, pursuing legal

remedies against, or recovering on a debt or security interest against, the individual;

(IV) For use in connection with any civil, criminal, administrative, or arbit

ral proceeding

in any federal, state, or local court or agency or before any self-regulatory body,

including the service of process, investigation in anticipation of litigation, and the

execution or enforcement of judgments and orders, or pursuant to an order of a federal,

state, or local court;

(V) For use in research activities, and for use in producing statistical reports, so long as

the personal information is not published, redisclosed, or used to contact the parties in

interest;

(VI) For use by any insurer or insurance support organization, or by a self-

insured entity,

or its agents, employees, or contractors, in connection with claims investigation

activities, antifraud activities, rating or underwriting;

(VII) For use in providing notice to the owners of towed or impounded vehicles;

(VIII) For use by any private investigative agency or security service for any purpose

permitted under this paragraph (b);

(IX) For use by an employer or its agent or insurer to obtain or verify information

relating to a party in interest who is a holder of a commercial driver's license;

(X) For use in connection with the operation of private toll transportation facilities;

(XI) For any other use in response to requests for individual motor vehicle records if the

department has obtained the express consent of the party in interest pursuant to section

42-2-121 (4), C.R.S.;

(XII) For bulk distribution for surveys, marketing or solicitations if the department has

obtained the express consent of the party in interest pursuant to section 42-2-121 (4),

C.R.S.;

(XIII) For use by any requestor, if the requestor demonstrates he or she has obtained the

written consent of the party in interest;

(XIV) For any other use specifically authorized under the laws of the state, if such use is

related to the operation of a motor vehicle or public safety; or

(XV) For use by the federally designated organ procurement organization for the

purposes of creating and maintaining the organ and tissue donor registry authorized in

section 12-34-120, C.R.S.

Protection Act of 1994", 18 U.S.C. sec. 2721 et seq., the federal "Fair Credit Reporting

Act", 15 U.S.C. sec. 1681 et seq., section 42-1-206, C.R.S., and this part 2.

(II) If the requestor release form indicates that the requestor will, in any manner, use,

obtain, resell, or transfer the information contained in records, requested individually or

in bulk, for any purpose prohibited by la

w, the department or agent shall deny inspection

of any motor vehicle or driver record.

(III) In addition to completing the requestor release form under section 42-1-206 (1) (b),

C.R.S., and subject to the provisions of section 42-1-206 (3.7), C.R.S., the requestor

shall sign an affidavit of intended use under penalty of perjury that states that the

requestor shall not obtain, resell, transfer, or use the information in any manner

prohibited by law. The department or the department 's authorized agent shall deny

inspection of any motor vehicle or driver record to any person, other than a person in

interest as defined in section 24-72-202 (4), or a federal, state, or local government

agency carrying out its official functions, who has not signed and returned the affidavit

of intended use.

(8) (a) A designated election official shall not allow a person, other than the person in

interest, to inspect the election records of any person that contain the original signature,

social security number, month of birth, day of the month of birth, or identification of that

person, including electronic, digital, or scanned images of a person's original signature,

social security number, month of birth, day of the month of birth, or identification.

(b) Nothing in paragraph (a) of this subsection (8) shall be construed to prohibit a

designated election official from:

(I) Making such election records available to any law enforcement agency or district

attorney of this state in connection with the investigation or prosecution of an election

offense specified in article 13 of title 1, C.R.S.;

(II) Making such election records available to employees of or election judges appo

inted

by the designated election official as necessary for those employees or election judges to

carry out the duties and responsibilities connected with the conduct of any election; and

(III) Preparing a registration list and making the list available for distribution or sale to

or inspection by any person.

(I) "Designated election official" shall have the same meaning as set forth in section 1-1-

104 (8), C.R.S.

(II) "Election records" shall have the same meaning as set forth in section 1-1-104 (11),

C.R.S., and shall include a voter registration application.

(III) "Identification" shall have the same meaning as set forth in section 1-1-104 (19.5),

C.R.S.

(IV) "Registration list" shall have the same meaning as set forth in section 1-1-104 (37),

C.R.S.

Source: L. 68: p. 202, § 4. L. 69: pp. 925, 926, §§ 1, 1. C.R.S. 1963: § 113-2-4. L. 77:

(2)(a)(I) repealed, p. 1250, § 4, effective December 31. L. 81:

(3)(d) added, p. 1237, § 1,

effective May 18; (3)(a)(I) amended, p. 1236, § 1, effective May 26. L. 83: (3)(a)(V)

and (3)(a)(VI) amended and (3)(a)(VII) added, p. 1023, § 2, effective March 22. L. 85:

(3)(a)(VI) and (3)(a)(VII) amended and (3)(a)(VIII) added, p. 933, § 3, effective July 1.

L. 88: (2)(a)(I) R&RE, p. 979, § 1, effective April 20. L. 91: (3.5) added, p. 828, § 1,

effective July 1. L. 92: (2)(a)(IV) and (3)(a)(II) amended and (3)(a)(IX) added, p. 1104,

§ 4, effective July 1. L. 93: (3)(d) amended, p. 64, § 1, effective March 22; (3)(a)(IX)

amended, p. 293, § 1, effective April 7; (2)(a)(III) and (2)(a)(IV) amended and (2)(a)(V)

added, p. 1763, § 1, effective June 6; (3)(a)(II) amended, p. 667, § 2, effective July 1. L.

94: (3)(a)(I) amended and (3)(a)(XI) added, p. 936, § 2, effective April 28; (3.5)(a)(I)

amended, p. 1638, § 53, effective May 31; (3)(a)(X) added, p. 680, § 1, effective July 1;

(2)(a)(IV), (2)(a)(V), (3.5)(a)(II), and (3.5)(b)(II) amended and (2)(a)(VI) added, pp.

2557, 2558, § 59, 60, effective January 1, 1995. L. 96: (3)(c) amended, p. 431, § 1,

effective April 22; (2)(a)(II) and (6) amended and (3)(a)(VIII) repealed, pp. 1484, 1470,

§§ 6, 16, effective June 1. L. 97: (3)(a)(I) amended, p. 350, § 5, effective April 19;

(2)(a)(VI) amended, p. 1178, § 1, effective July 1; (3)(a)(XII) added, p. 354, § 1,

effective August 6; (7) added, p. 1050, § 2, effective September 1. L. 98: (3)(d)

amended,

p. 974, § 21, effective May 27; (3.5)(b)(V) added, p. 1332, § 43, effective June

1. L. 99: (3)(a)(X)(A) amended and (3)(a)(XIII) added, p. 207, § 2, effective March 31;

(2)(a)(VI) amended and (3.5)(g) added, p. 344, §§ 1, 2, effective April 16; (2)(a)(VI)

amended, p. 1241, § 3, effective August 4; (3)(a)(XIV) added, p. 370, § 1, effective

August 4. L. 2000: (2)(c) added, p. 243, § 9, effective March 29; (2)(a)(VI), (3.5)(a)(II),

(3.5)(b)(II), (3.5)(b)(III), (3.5)(b)(V), and (7) amended, p. 1337, § 1, effective May 30;

(3)(e) added, p. 1963, § 5, effective June 2; (7)(b)(XV) added, p. 732, § 13, effective

July 1; (3.5)(c)(VI) amended, p. 1873, § 111, effective August 2. L. 2001: (7)(a)

amended, p. 1274, § 35, effective June 5; (1)(d) added, p. 151, § 6, effective July 1;

(3)(a)(XI)(A), (5), and (6)(a) amended and (5.5) added, p. 1073, § 3, effective August 8;

(7)(a) and (7)(c) amended, p. 586, § 1, effective August 8. L. 2002: (3.5)(c)(VII)

amended, p. 113, § 7, effective March 26; (3)(a)(XVI) added, p. 239, §

8, effective April

12; (3)(a)(XVII) added, p. 1213, § 10, effective June 3; (3)(a)(XV) added, p. 935, § 1,

effective July 1; (3)(a)(XV) added, p. 86, § 2, effective August 7. L. 2003: (3)(a)(XVI)

and (3)(a)(XVII) amended, p. 1636, § 1, effective May 2; (3.5)(c)(VII) amended, p.

1211, § 23, effective July 1; (3)(a)(IX) amended, p. 1619, § 30, effective August 6. L.

2004: (2)(a)(VII) added, p. 1959, § 3, effective August 4. L. 2005: (2)(a)(VIII) added,

(3)(a)(IX) amended, and (3)(a)(XVII) repealed, pp. 502, 503, 504, §§ 1, 2, 5, effective

July 1; (3)(a)(XII) and (7)(a) amended, p. 1182, § 29, effective August 8; (3)(a)(XIV)

amended, p. 462, § 3, effective December 1. L. 2006: (8) added, p. 44, § 1, effective

March 17; (3)(a)(XIX) added, p. 564, § 1, effective April 24; (3)(a)(IV) amended, p.

276, § 2, effective January 1, 2007. L. 2007: (2)(d) added, p. 34, § 2, effective March 5;

(3)(a)(XIV) amended, p. 1590, § 7, effective July 1; (7)(b)(XV) amended, p. 798, § 8,

effective July 1.

Editor's note: (1) Subsection (3)(a)(IX) was enacted by chapter 168, Session Laws of Colorado

1992, as (3)(a)(X) but has been changed on revision for ease of location.

(2) Amendments to subsection (2)(a)(VI) by House Bill 99-1293 and Senate Bill 99-174 were

harmonized.

(3) Amendments to subsection (7)(a) by House Bill 01-1025 and Senate Bill 01-138 were

harmonized.

(4) Subparagraph (3)(a)(XVIII) was originally numbered as (3)(a)(XV) in House Bill 02-1395 but

has been renumbered on revision for ease of location.

(5) Section 13 of chapter 207, Session Laws of Colorado 2007, provides that the act amending

subsection (7)(b)(XV) applies to anatomical gifts, revocations, and refusals occurring on or after

July 1, 2007.

Cross references: For the legislative declaration contained in the 1996 act amending

subsection (6), see section 1 of chapter 271, Session Laws of Colorado 1996; for service of

process, see C.R.C.P. 4.

ANNOTATION

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Law reviews. For article, "E-mail, Open Meetings, and Public Records", see 25 Colo. Law. 99

(October 1996). For article, "Protecting Confidential Information Submitted in Procurements to

Colorado State Agencies", see 34 Colo. Law. 67 (January 2005).

Three-part test to show that the Colorado Open Records Act applies to a record. A plaintiff

must show that a public entity: (1) improperly; (2) withheld; (3) a public record in order for the Act

to apply. Wick Commc'ns Co. v. Montrose County Bd. of County Comm'rs, 81 P.3d 360 (Colo.

2003).

The requesting party must make a threshold showing that the document is likely a public

record, in cases where it is not clear whether the custodian holds a record in an individual or

official capacity, and thus whether the record is private or public. Wick Commc'ns Co. v.

Montrose County Bd. of County Comm'rs, 81 P.3d 360 (Colo. 2003).

Court considers and weighs public interest in determining disclosure question. The

limiting language making certain of the open records provisions applicable except as "otherwise

provided by law" is a reference to the rules of civil procedure and expresses the legislative intent

that a court should consider and weigh whether disclosure would be contrary to the public

interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Subsection (3)(a)(I) prohibits the disclosure of medical records "unless otherwise

provided by law". Section 30-10-606 (6)(a) expressly provides otherwise, granting coroners

access to medical information from health care providers. Bodelson v. City of Littleton, 36 P.3d

214 (Colo. App. 2001).

A person need not show a special interest in order to be permitted access to particular public

records. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Official is unauthorized to deny access in absence of specific statutory provision. In the

absence of a specific statute permitting the withholding of information, a public official has no

authority to deny any person access to public records. Denver Publ'g Co. v. Dreyfus, 184 Colo.

288, 520 P.2d 104 (1974); Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).

Because waiver is not included as one of the statutory grounds for denying the right of access,

public policy prohibits enforcing a waiver of the right to inspect psychological test results.

Carpenter v. Civil Serv. Comm'n, 813 P.2d 773 (Colo. App. 1990).

The exception made in subsection (3)(a)(IV) for "privileged information" incorporates the

common law deliberative process privilege. The purpose of the privilege is to protect the

frank exchange of ideas and opinions critical to the government's decision-making process

where disclosure would discourage such discussion in the future. Thus, material prepared by a

governmental employee is not subject to disclosure if the court finds that the material is both

predecisional and deliberative and that disclosure would be likely to adversely affect the

purposes of the privilege and stifle frank communication within an agency. City of Colo. Springs

v. White, 967 P.2d 1042 (Colo. 1998).

Documents containing legal advice on how to proceed with lobbying efforts and how to

respond to a taxpayer's open records law requests are protected by the attorney-client privilege.

Such documents were not lobbying because they were not communications made to a public

official for the purpose of influenci

ng legislation. Black v. S.W. Water Conserv. Dist., 74 P.3d 462

(Colo. App. 2003).

In enacting exception to discovery rule for personnel files in subsection (3)(a)(II), the

general assembly intended a blanket protection for all personnel files, except applications and

performance ratings, and did not grant custodian discretion to balance interest in disclosure with

individual's right to privacy. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).

Although subsection (3)(a)(II) does not authorize any balancing of the public interest and the

right of privacy, the protection for personnel files is based on a concern for the individual's right

to privacy, and it remains the duty of the courts to ensure that documents as to which this

protection is claimed actually do implicate this right. The applicant must bear the burden of

proving that the custodian's denial of inspection was arbitrary and capricious. Denver Post Corp.

v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).

A legitimate expectation of privacy must exist for the exception to discovery rule for

personnel files to apply and a public entity may not restrict access to information by merely

placing a record in a personnel file. Denver Publ'g Co. v. Univ. of Colo., 812 P.2d 682 (Colo.

App. 1990); Daniels v. City of Commerce City, 988 P.2d 648 (Colo. App. 1999).

The disclosure of names of public employees receiving severance payments pursuant to

the city of Colorado Springs transitional employment program would not cause

substantial injury to the public interest. Such exemption applies only to extraordinary

situations that the general assembly could not identify in advance. Freedom Newspapers, Inc. v.

Tollefson, 961 P.2d 1150 (Colo. App. 1998).

Documents subject to disclosure under the Colorado Open Records Act are exempt if

disclosure would cause substantial injury to the public interest by invading a

constitutionally protected liberty interest. The release of employees' names and amounts

paid pursuant to the city of Colorado Springs transitional employment program does not unduly

interfere with the employees' liberty interest. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d

1150 (Colo. App. 1998).

The public's right to know how public funds are spent is paramount in weighing whether

disclosure may chill Colorado state university's ability to use the transitional employment

program to remain competitive. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo.

App. 1998).

A county officer and a county employee who exchanged sexually explicit e-mail

messages had a reasonable expectation that the disclosure of such highly personal and

sensitive information would be limited, even though they were on notice that the messages were

not private. In re Bd. of County Comm'rs, 95 P.3d 593 (Colo. App. 2003).

Disclosure of sexually explicit e-mails between a county officer and a county employee

may serve a compelling state interest

to the extent they help explain why the officer promoted

the employee, why the employee received increases in salary and overtime pay, and why the

employee was not terminated despite allegations of embezzlement. In re Bd. of County

Comm'rs, 95 P.3d 593 (Colo. App. 2003).

The sexual harassment exception

in subsection (3)(a)(X)(A) does not prohibit the disclosure of

e-mails unrelated to official business and of portions of an investigati

ve report that do not refer to

other employees by name. In re Bd. of County Comm'rs, 95 P.3d 593 (Colo. App. 2003).

Public interest in ensuring that public entities conduct internal reviews effectively and

efficiently outweighs interest of public entity employer in maintaining confidentiality. Daniels v.

City of Commerce City, 988 P.2d 648 (Colo. App. 1999).

Police personnel files and staff investigation reports are not exempt from discovery. The

open records provisions do not, ipso facto, exempt the personnel files and the staff investigation

bureau reports of the Denver police department from discovery in civil litigation. Martinelli v.

District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Subsections (5) and (6) provide the exclusive procedures for persons requesting records

and record custodians to resolve disputes concerning record accessibility. People in

Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988).

However, the procedure under subsection (6) is inapplicable

where a custodian of records is

not claiming that disclosure would do substantial injury to the public interest and does not seek

to have disclosure prohibited if an open records request is made in compliance with the entity's

open records policy. Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d

308 (Colo. App. 2004).

Where the government entity has a legitimate basis for concluding that compliance with an open

records request within the statutory time limits is physically impossible, a trial court may properly

entertain a complaint for declaratory relief even if doing so could result in delay in the production

of documents. Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d 308

(Colo. App. 2004).

Provisions of subsection (5) and § 24-72-206 are the sole remedies under this part. Bd. of

County Comm'rs v. HAD Enterp., Inc., 35 Colo. App. 162, 533 P.2d 45 (1974).

The procedure set forth in subsection (5) is the exclusive remedy set forth in the statute when a

custodian fails to allow inspection of records. Pope v. Town of Georgetown, 648 P.2d 672 (Colo.

App. 1982).

Where custodian denies access to any public record, applicant may request written

statement of the grounds for the denial, which statement shall cite the law or regulation under

which access is denied. The written statement must be furnished forthwith. Denver Publ'g Co. v.

Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Any action filed by the custodian or the party requesting the record must be separate,

independent action in the appropriate district court and the action cannot be filed as part of any

ongoing proceeding. People in Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988).

Subsection (6) specifically places the burden of proof upon the custodian. Denver Publ'g

Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

As to documents which involve privacy rights, custodian of documents bears burden of proving

that disclosure would do substantial injury to public interest by invading right to privacy of

individuals involved. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).

Arbitrary and capricious refusal was not shown, hence attorney fees would not be

awarded,

where city's denial of request for records reflected a conscientious effort to reasonably

apply legislative standards. Daniels v. City of Commerce City, 988 P.2d 648 (Colo. App. 1999).

Applicant does not bear burden of proof that denial of inspection by custodian of records is

arbitrary and capricious. Denver Pub. Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

Presumption in favor of disclosure suggests that burden of establishing confidential

financial information exemption ought to rest with the party opposing disclosure to

overcome that presumption and not on citiz

en to show that disclosure is warranted. Intern. Broth.

of Elec. v. Denver Metro., 880 P.2d 160 (Colo. App. 1994).

Under subsection (3)(a)(II), an employee is entitled to access to his leave records in his own

personnel files. Ornelas v. Dept. of Insts., 804 P.2d 235 (Colo. App. 1990).

Subsection (6) allows a court to restrict access to public records, although they might be

accessible under another provision, where it finds that substantial injury to the public interest

would occur. Civil Serv. Com'n v. Pinder, 812 P.2d 645 (Colo. 1991); Bodelson v. Denver Publ'g

Co., 5 P.3d 373 (Colo. App. 2000).

The construction and interpretation that will render subsection (6) effective in

accomplishing t

he purpose for which it was enacted is to allow the district court to restrict access

to public records where substantial injury to the public interest would result, notwithstanding the

fact that said record might otherwise be available for inspection by a party in interest or by the

general public. Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991); Bodelson v. Denver

Publ'g Co., 5 P.3d 373 (Colo. App. 2000).

Public interest exception to discovery rule in subsection (6) requires consideration of (1)

whether individual has a legitimate expectation of nondisclosure, (2) whether there is a

compelling public interest in access to information, and (3), if public interest compels disclosure,

how disclosure may occur in a manner least intrusive with respect to individual's right of privacy.

Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980); Denver Post Corp. v. Univ. of

Colo., 739 P.2d 874 (Colo. App. 1987).

Privacy protections for letters of reference under subsection (3)(a)(III) apply to

handwritten notes made on questionnaire forms used in contacting references. The

general assembly intended to protect from disclosure the documentary materials obtained from

references in confidence. This intent applies equally to the notes taken by the hiring agency

when calling references. City of Westminster v. Dogan Constr., 930 P.2d 585 (Colo. 1997).

The phrase, "letters of reference concerning employment", used in subsection (3)(a)(III),

includes handwritten notes from references for a private contractor. As with hiring any

prospective employee, the hiring entity is justifiably concerned about a contractor's past

performance and ability to complete jobs on time and in budget. City of Westminster v. Dogan

Constr., 930 P.2d 585 (Colo. 1997).

Civil service commission was entitled to judgment restricting access to examination

results where person requesting access presented no evidence disputing the factual issue of

whether

substantial injury to the public interest would result if the information were not restricted

under subsection (6). Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991).

Privacy rights of employees of university were not sufficient to preclude disclosure of

university documents pertaining to said employees, considering important public interest in

disclosing circumstances under which those individuals received payments from a foreign

government in connection with university contracts to establish a hospital and a medical school

in a foreign country. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).

Public policy of Open Records Act violated by grant of authority to university's custodian

of records to place any document in personnel files in which custodian determines a faculty

member would have a legitimate expectation of privacy and, therefore, precluding its disclosure

under said Act. Denver Pub. Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

Access to terms of employment between institution of higher education and its

employees

cannot be restricted merely by placing documents in personnel file. Denver Pub. Co.

v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

Documents in personnel file of former university chancellor which did not involve a privacy

right or which contained information routinely disclosed to others were not entitled to protection

pursuant to nondisclosure exception of subsection (3). Denver Pub. Co., v. Univ. of Colo., 812

P.2d 682 (Colo. App. 1990).

Public interest exception in subsection (6) did not prevent release of terms of final

settlement agreement between former chancellor and university as public's right to know

how public funds are spent outweighed any potential damage to university's ability to resolve

internal matters of dispute by releasing information contrary to parties' expectations. Denver

Pub. Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

District court erred in prohibiting access to a governmental entity's own financial

statements by exempting them under subsection (6)

because the governmental entity did not

demonstrate an extraordinary situation or that substantial injury to the public would result if the

statements were disclosed. Zubeck v. El Paso County Retirement Plan, 961 P.2d 597 (Colo.

App. 1998).

A record may be "public" for one purpose and not for another, because whether a record is

to be regarded as a public record in a particular instance will depend upon the purposes of the

law which will be served by so classifying it. Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032

(1972).

Pursuant to strong presumption favoring public disclosure of all documents defined as

public records, trial court properly concluded that in balancing commercial harm that could be

caused by disclosure against perceived benefits, transportation contracts entered into between

city department of public utilities and railroad were subject to disclosure under open records act.

Freedom News v. Denver & Rio Grande R. Co., 731 P.2d 740 (Colo. App. 1986).

Open records statutes do not necessarily provide for release of information merely

because it is in the possession of the government. Intern. Broth. of Elec. v. Denver Metro.,

880 P.2d 160 (Colo. App. 1994).

Financial information generated by a governmental entity is not confidential under

subsection (3)(a)(IV) because disclosure would not impair the governmental entity's ability to

gain future information nor cause substantial harm to any person providing the information as

most of the information was generated by the governmental entity itself. Zubeck v. El Paso

County Ret. Plan, 961 P.2d 597 (Colo. App. 1998).

Confidential financial information contained in bid related documents are not per se

unprotected if bid is successful. Intern. Broth. of Elec. v. Denver Metro., 880 P.2d 160 (Colo.

App. 1994).

Confidential financial information exemption under subsection (3)(a)(IV) may apply to

redacted material in successful subcontractor's bid proposal and prequalification documents

where material may have contai

ned information that was ultimately incorporated into subcontract

and where disclosure may pose substantial risk to subcontractor's competitive position. Intern.

Broth. of Elec. v. Denver Metro., 880 P.2d 160 (Colo. App. 1994).

Howeve

r, evidence presented at hearing was inadequate to establish that redacted material was

protected by confidential financial information exemption which was based solely upon opinion of

witness that information was confidential. Intern. Broth. of Elec. v. D

enver Metro., 880 P.2d 160

(Colo. App. 1994).

Legislative intent to classify autopsy reports as public records. The phrase "exclusive of

coroners' autopsy reports" in subsection (3)(a)(I) is convincing evidence of the legislative intent

to classify autopsy reports as public records open to inspection, rather than directing the denial

of a right of inspection by any person, as is the case with other medical, psychological,

sociological, and scholastic data. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d

104 (1974).

Coroners' autopsy reports are "public records" and not "criminal justice records", so that

autopsy report on homicide victim may be withheld from public inspection by custodian thereof

only pursuant to procedure under the open records law requiring establishment that disclosure

would do "substantial injury to the public interest". Freedom Newspapers, Inc. v. Bowerman, 739

P.2d 881 (Colo. App. 1987).

The controlling standard in subsection (6)(a) regarding the release of the complete autopsy

report is public, not private, injury. Blesch v. Denver Publ'g Co., 62 P.3d 1060 (Colo. App. 2002).

Trial court properly denied the release of autopsy reports of victims of the Columbine

high school massacre. Testimony by family members of the victims and the coroner supported

the court's finding that release of the reports would do substantial injury to the public interest.

Furthermore, the Open Records Act did not require the trial court to conduct an in camera

hearing on the report. Bodelson v. Denver Publ'g Co., 5 P.3d 373 (Colo. App. 2000). But see

Blesch v. Denver Publ'g Co., 62 P.3d 1060 (Colo. App. 2002).

Records of state compensation insurance authority do not fall within any of the

exemptions enumerated in this section and are, therefore, subject to the state opens records

law as a "political subdivision". Dawson v. State Comp. Ins. Auth., 811 P.2d 408 (Colo. App.

1990).

Police records showing arrests, convictions, and other information about individuals are

not public and should not be open to the scrutiny of the public at large. Losavio v. Mayber, 178

Colo. 184, 496 P.2d 1032 (1972).

Except when given to prosecution. When lists of the conviction records of prospective jurors

are given to the prosecution, they can no longer be classified as internal matters affecting only

the internal operations of the police department. Losavio v. Mayber, 178 Colo. 184, 496 P.2d

1032 (1972).

In which case, defense entitled to obtain information. Police records are not public records

open to inspection by the general public but where the district attorney's office regularly receives

information from such records, the defense attorneys, including the public defender's office, are

entitled to obtain such information in the possession of the prosecution. Losavio v. Mayber, 178

Colo. 184, 496 P.2d 1032 (1972).

Applied in Laubach v. Bradley, 194 Colo. 362, 572 P.2d 824 (1977); In re W.D.A. v. City &

County of Denver, 632 P.2d 582 (Colo. 1981).

24-72-204.5. Adoption of electronic mail policy.

(1) On or before July 1, 1997, the state or any agency, institution, or political subdivision

thereof that operates or maintains an electronic mail communications system shall adopt

a written policy on any monitoring of electronic mail communications and the

circumstances under which it will be conducted.

(2) The policy shall include a statement that correspondence of the employee in the form

of electronic mail may be a public record under the public records law and may be

subject to public inspection under section 24-72-203.

Source: L. 96: Entire section added, p. 1485, § 7, effective June 1.

24-72-205. Copy, printout, or photograph of a public record.

(1) In all cases in which a person has the right to inspect a public record, the person may

request a copy, printout, or photograph of the record. The custodian shall furnish a copy,

printout, or photograph and may charge a fee determined in accordance with subsection

(5) of this section; except that, when the custodian is the secretary of state, fees shall be

determined and collected pursuant to section 24-21-104 (3), and when the custodian is

the executive director of the department of personnel, fees shall be determined and

collected pursuant to section 24-80-102 (10). Where the fee for a certified copy or other

copy, printout, or photograph of a record is specifically prescribed by law, the specific

fee shall apply.

(2) If the custodian does not have facilities for making a copy, printout, or photograph of

a record that a person has the right to inspect, the person shall be granted access to the

record for the purpose of making a copy, printout, or photograph. The copy, printout, or

photograph shall be made while the record is in the possession, custody, and control of

the custodian thereof and shall be subject to the supervision of the custodian. When

practical, the copy, printout, or photograph shall be made in the p

lace where the record is

kept, but if it is impractical to do so, the custodian may allow arrangements to be made

for the copy, printout, or photograph to be made at other facilities. If other facilities are

necessary, the cost of providing them shall be paid by the person desiring a copy,

printout, or photograph of the record. The custodian may establish a reasonable schedule

of times for making a copy, printout, or photograph and may charge the same fee for the

services rendered in supervising the copying, printing out, or photographing as the

custodian may charge for furnishing a copy, printout, or photograph under subsection (5)

of this section.

(3) If, in response to a specific request, the state or any of its agencies, institutions, or

political subdivisions has performed a manipulation of data so as to generate a record in

a form not used by the state or by said agency, institution, or political subdivision, a

reasonable fee may be charged to the person making the request. Such fee shall not

exceed the actual cost of manipulating the said data and generating the said record in

accordance with the request. Persons making subsequent requests for the same or similar

records may be charged a fee not in excess of the original fee.

(4) If the public record is a result of computer output other than word processing, the fee

for a copy, printout, or photograph thereof may be based on recovery of the actual

incremental costs of providing the electronic services and products together with a

reasonable portion of the costs associated with building and maintaining the information

system. Such fee may be reduced or waived by the custodian if the electronic services

and products are to be used for a public purpose, including public agency program

support, nonprofit activities, journalism, and academic research. Fee reductions and

waivers shall be uniformly applied among persons who are similarly situated.

(5) (a) A custodian may charge a fee not to exceed twenty-five cents per standard page

for a copy of a public record or a fee not to exceed the actual cost of providing a copy,

printout, or photograph of a public record in a format other than a standard page.

(b) Notwithstanding paragraph (a) of this subsection (5), an institution, as defined in

section 24-72-202 (1.5), that is the custodian of scholastic achievement data on an

individual person may charge a reasonable fee for a certified transcript of the data.

Source: L. 68: p. 204, § 5. C.R.S. 1963: § 113-2-5. L. 83: (1) amended, p. 863, § 4,

effective July 1. L. 92: (3) and (4) added, p. 1105, § 5, effective July 1. L. 2007: (1) and

(2) amended and (5) added, p. 578, § 1, effective August 3.

Editor's note: Subsections (1), (2), and (5) were contained in a 2007 act that was passed

without a safety clause. For further explanation concerning the effective date, see page vii of this

volume.

Cross references: For distribution of copies of reports made to the general assembly, see § 24-

1-136 (9).

ANNOTATION

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 61, 66, 69, 95, 116, 119, 125, 128.

24-72-206. Violation - penalty.

Any person who willfully and knowingly violates the provisions of this part 2 is guilty

of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more

than one hundred dollars, or by imprisonment in the county jail for not more than ninety

days, or by both such fine and imprisonment.

Source: L. 68: p. 204, § 6. C.R.S. 1963: § 113-2-6.

ANNOTATION

Provisions of this section and § 24-72-204 (5) are the sole remedies under this part. Bd. of

County Comm'rs v. HAD Enterprises, Inc., 35 Colo. App. 162, 533 P.2d 45 (1974).

This section does not create a private right of action for a violation of this act. Shields v.

Shetler, 682 F. Supp. 1172 (D. Colo. 1988).

——————————

PART 3

CRIMINAL JUSTICE RECORDS

Law reviews: For article, "Procedures and Ethical Questions Under the Colorado

Criminal Justice Records Act", see 14 Colo. Law. 2193 (1985).

24-72-301. Legislative declaration.

(1) The general assembly hereby finds and declares that the maintenance, access and

dissemination, completeness, accuracy, and sealing of criminal justice records are

matters of statewide concern and that, in defining and regulating those areas, only

statewide standards in a state statute are workable.

(2) It is further declared to be the public policy of this state that criminal justice agencies

shall maintain records of official actions, as defined in this part 3, and that such records

shall be open to inspection by any person and to challenge by any person in interest, as

provided in this part 3, and that all other records of criminal justice agencies in this state

may be open for inspection as provided in this part 3 or as otherwise specifically

provided by law.

Source: L. 77: Entire part added, p. 1244, § 1, effective December 31.

ANNOTATION

Law reviews. For article, "Home Rule Municipalities and Colorado's Open Records and

Meetings Laws", see 18 Colo. Law. 1125 (1989). For article, "Sealing Criminal Records in

Colorado", see 21 Colo. Law. 247 (1992).

Court considers and weighs public interest in determining disclosure question. The

limiting language making certain of the public records provisions applicable except as "otherwise

provided by law" is a reference to the rules of civil procedure and expresses the legislative intent

that a court should consider and weigh whether disclosure would be contrary to the public

interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Police personnel files and staff investigation reports not exempt from discovery. The

Colorado open records provisions do not, ipso facto, exempt the personnel files and the staff

investigation bureau reports of the Denver police department from discovery in civil litigation.

Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Destruction of records after complaint dismissed not intent of general assembly. The

general assembly did not intend that the physical destruction of criminal arrest records be

allowed after the dismissal of the complaint. People v. Wright, 43 Colo. App. 30, 598 P.2d 157

(1979).

Statutory remedies deemed exclusive.

Because the criminal justice records provisions provide

a comprehensive scheme concerning criminal records, the statutory remedies are exclusive for

those persons whose records come within the purview of the statutory scheme. People v.

Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Applied

in City & County of Denver v. District Court, 199 Colo. 223, 607 P.2d 984 (1980); City &

County of Denver v. District Court, 199 Colo. 303, 607 P.2d 985 (1980); Denver Policemen's

Protective Ass'n v. Lichtenstein, 660 F.2d 432 (10th Cir. 1981).

24-72-302. Definitions.

As used in this part 3, unless the context otherwise requires:

(1) "Arrest and criminal records information" means information reporting the arrest,

indictment, or other formal filing of crimina

l charges against a person; the identity of the

criminal justice agency taking such official action relative to an accused person; the date

and place that such official action was taken relative to an accused person; the name,

birth date, last-known address, and sex of an accused person; the nature of the charges

brought or the offenses alleged against an accused person; and one or more dispositions

relating to the charges brought against an accused person.

(2) "Basic identification information" means the name, place and date of birth, last-

known address, social security number, occupation and address of employment, physical

description, photograph, handwritten signature, sex, fingerprints, and any known aliases

of any person.

(3) "Criminal justice agency" means any court with criminal jurisdiction and any agency

of the state or of any county, city and county, home rule city and county, home rule city

or county, city, town, territorial charter city, governing boards of institutions of higher

education, school district, special district, judicial district, or law enforcement authority

which performs any activity directly relating to the detection or investigation of crime;

the apprehension, pretrial release, posttrial

release, prosecution, correctional supervision,

rehabilitation, evaluation, or treatment of accused persons or criminal offenders; or

criminal identification activities or the collection, storage, or dissemination of arrest and

criminal records information.

(4) "Criminal justice records" means all books, papers, cards, photographs, tapes,

recordings, or other documentary materials, regardless of form or characteristics, that are

made, maintained, or kept by any criminal justice agency in the state for use in the

exercise of functions required or authorized by law or administrative rule, including but

not limited to the results of chemical biological substance testing to determine genetic

markers conducted pursuant to sections 16-11-102.4, 16-11-104, 16-11-204.3, and 16-

11-308 (4.5), C.R.S.

(5) "Custodian" means the official custodian or any authorized person having personal

custody and control of the criminal justice records in question.

(6) "Disposition" means a decision not to file criminal charges after arrest; the

conclusion of criminal proceedings, including conviction, acquittal, or acquittal by

reason of insanity; the dismissal, abandonment, or indefinite postponement of criminal

proceedings; formal diversion from prosecution; sentencing, correctional supervision,

and release from correctional supervision, including terms and conditions thereof;

outcome of appellate review of criminal proceedings; or executive clemency.

(7) "Official action" means an arrest; indictment; charging by information; disposition;

pretrial or posttrial release from custody; judicial determination of mental or physical

condition; decision to grant, order, or terminate probation, parole, or participation in

correctional or rehabilitative programs; and any decision to formally discipline,

reclassify, or relocate any person under criminal sentence.

(8) "Official custodian" means any officer or employee of the state or any agency,

institution, or political subdivision thereof who is responsible for the maintenance, care,

and keeping of criminal justice records, regardless of whether such records are in his

actual personal custody and control.

(9) "Person" means any natural person, corporation, limited liability company,

partnership, firm, or association.

(10) "Person in interest" means the person who is the primary subject of a criminal

justice record or any representative designated

by said person by power of attorney or

notarized authorization; except that, if the subject of the record is under legal disability,

"person in interest" means and includes his parents or duly appointed legal

representative.

Source: L. 77: Entire part added, p. 1244, § 1, effective December 31. L. 81: (3)

amended, p. 1238, § 1, effective June 4. L. 88: (2) amended, p. 979, § 2, effective April

20. L. 89: (2) amended, p. 845, § 114, effective July 1. L. 90: (9) amended, p. 449, § 22,

effective April 18. L. 98: (2) amended, p. 947, § 6, effective May 27. L. 99: (4)

amended, p. 1170, § 5, effective July 1. L. 2000: (4) amended, p. 1266, § 5, effective

May 26; (4) amended, p. 1027, § 7, effective July 1. L. 2002: (4) amended, p. 1023, §

43, effective June 1; (4) amended, p. 1155, § 15, effective July 1. L. 2006: (4) amended,

p. 1692, § 15, effective July 1, 2007. L. 2007:

(4) amended, p. 2040, § 60, effective June

Editor's note: (1) Amendments to subsection (4) by House Bill 00-1166 and Senate Bill 00-121

were harmonized.

(2) Amendments to subsection (4) by Senate Bill 02-159 and Senate Bill 02-019 were

harmonized.

ANNOTATION

Investigative records were properly classified as "criminal justice records" under this

section, because they were made and maintained in the exercise of an authorized function of

the DOC governed by administrative regulations. Johnson v. Colo. Dept. of Corr., 972 P.2d 692

(Colo. App. 1998).

Police reports in the possession of a county department of social services are "criminal

justice records",

regardless of whether the department itself is a "criminal justice agency".

Moreover, the department became a "custodian" of such records by keeping copies of the police

reports in its files. In re Petition of T.L.M., 39 P.3d 1239 (Colo. App. 2001).

Sheriff's department is a "criminal justice agency". Harris v. Denver Post Corp., 123 P.3d

1166 (Colo. 2005).

Applied in Berman v. People, 41 Colo. App. 488, 589 P.2d 508 (1978).

24-72-303. Records of official actions required - open to inspection.

(1) Each official action as defined in this part 3 shall be recorded by the particular

criminal justice agency taking the official action. Such records of official actions shall be

maintained by the particular criminal justice agency which took the action and shall be

open for inspection by any person at reasonable times, except as provided in this part 3

or as otherwise provided by law. The official custodian of any records of official actions

may make such rules and regulations with reference to the inspection of such records as

are reasonably necessary for the protection of such records and the prevention of

unnecessary interference with the regular discharge of the duties of the custodian or his

office.

(2) If the requested record of official action of a criminal justice agency is not in the

custody or control of the person to whom application is made, such person shall

forthwith notify the applicant of this fact in writing, if requested by the applicant. In

such notification, he shall state, in detail to the best of his knowledge and belief, the

agency which has custody or control of the record in question.

(3) If the requested record of official action of a criminal justice agency is in the custody

and control of the person to whom application is made but is in active use or in storage

and therefore not available at the time an applicant asks to examine it, the custodian shall

forthwith notify the applicant of this fact in writing, if requested by the applicant. If

requested by the applicant, the custodian shall set a date and hour within three working

days at which time the record will be available for inspection.

Source: L. 77: Entire part added, p. 1246, § 1, effective December 31.

ANNOTATION

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Law reviews. For article, "Home Rule Municipalities and Colorado's Open Records and

Meetings Laws", see 18 Colo. Law. 1125 (1989).

24-72-304. Inspection of criminal justice records.

(1) Except for records of official actions which must be maintained and released

pursuant to this part 3, all criminal justice records, at the discretion of the official

custodian, may be open for inspection by any person at reasonable times, except as

otherwise provided by law, and the official custodian of any such records may make

such rules and regulations with reference to the inspection of such records as are

reasonably necessary for the protection of such records and the prevention of

unnecessary interference with the regular discharge of the duties of the custodian or his

office.

(2) If the requested criminal justice records are not in the custody or control of the

person to whom application is made, such person shall forthwith notify the applicant of

this fact in writing, if requested by the applicant. In such notification, he shall state, in

detail to the best of his knowledge and belief, the reason for the absence of the records

from his custody or control, their location, and what person then has custody or control

of the records.

(3) If the requested records are not in the custody and control of the criminal justice

agency to which the request is directed but are in the custody and control of a central

repository for criminal justice records pursuant to law, the criminal justice agency to

which the request is directed shall forward the request to the central repository. If such a

request is to be forwarded to the central repository, the criminal justice agency receiving

the request shall do so forthwith and shall so advise the applicant forthwith. The central

repository shall forthwith reply directly to the applicant.

(4) (a) The name and any other information that would identify any victim of sexual

assault or of alleged sexual assault or attempted sexual assault or alleged attempted

sexual assault shall be deleted from any criminal justice record prior to the release of

such record to any individual or agency other than a criminal justice agency when such

record bears the notation "SEXUAL ASSAULT" prescribed by this subsection (4).

(b) (I) A criminal justice agency or custodian of criminal justice records shall make the

notation "SEXUAL ASSAULT" on any record of official action and on the file

containing such record when the official action is related to the commission or the

alleged commission of any of the following offenses:

(A) Sexual assault under section 18-3-402, C.R.S., or sexual assault in the first degree

under section 18-3-402, C.R.S., as it existed prior to July 1, 2000;

(B) Sexual assault in the second degree under section 18-3-403, C.R.S., as it existed

prior to July 1, 2000;

third degree under section 18-3-404, C.R.S., as it existed prior to July 1, 2000;

(D) Sexual assault on a child under section 18-3-405, C.R.S.;

(E) Sexual assault on a child by one in a position of trust under section 18-3-405.3,

C.R.S.;

(F) Sexual assault on a client by a psychotherapist under section 18-3-405.5,

C.R.S.;

(G) Incest under section 18-6-301, C.R.S.;

(H) Aggravated incest under section 18-6-302,

C.R.S.; or

(I) An attempt to commit any of the offenses listed in sub-subparagraphs (A) to (H) of

this subparagraph (I).

(II) The notation required pursuant to subparagraph (I) of this paragraph (b) shall be

made when:

(A) Any record or file or both of official action is prepared relating to the commission or

alleged commission of an offense enumerated in subparagraph (I) of this paragraph (b);

(B) The name of any victim of the commission or alleged commission of any offense

enumerated in subparagraph (I) of this paragraph (b) for which official action was taken

appears on the criminal information or indictment.

notation "SEXUAL ASSAULT" on any record of official action and on the file

containing such record when:

(I) Any employee of the court, officer of the court, or judicial officer notifies such

agency or

custodian of the name of any victim of the commission or alleged commission

of any offense enumerated in subparagraph (I) of paragraph (b) of this subsection (4)

when such victim's name is disclosed to or obtained by such employee or officer during

the course of proceedings related to such official action; or

(II) Such record or file contains the name of a victim of the commission or alleged

commission of any such offense and the victim requests the custodian of criminal justice

records to make such a notation.

(5) Nothing in this section shall be construed to limit the discretion of the district

attorney to authorize a crime victim, as defined in section 24-4.1-302 (5), or a member

of the victim's immediate family, as defined in section 24-4.1-302 (6), to view all or a

portion of the presentence report of the probation department.

Source: L. 77: Entire part added, p. 1246, § 1, effective December 31. L. 92: (4) added,

p. 1106, § 6, effective July 1. L. 93: (4) amended, p. 1863, § 1, effective June 6. L. 96:

(4)(a) amended, p. 1587, § 14, effective July 1. L. 97: (5) added, p. 1551, § 2, effective

July 1. L. 2000: (4)(b)(I)(A), (4)(b)(I)(B), and (4)(b)(I)(C) amended, p. 707, § 36,

effective July 1. L. 2006: (4)(a) and (4)(b)(I) amended, p. 421, § 3, effective April 13.

ANNOTATION

Court considers and weighs public interest in determining disclosure question. The

limiting language making certai

n of the public records provisions applicable except as "otherwise

provided by law" is a reference to the rules of civil procedure and expresses the legislative intent

that a court should consider and weigh whether disclosure would be contrary to the public

interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Person requesting inspection of an item has the initial burden to show that the item is likely

a "criminal justice record". The capacity in which the custodian makes, maintains, keeps, and

uses the record is the linchpin to this inquiry. Harris v. Denver Post Corp., 122 P.3d 1166 (Colo.

2005).

If the initial burden is met, the burden then shifts to the custodian to show whether the item in

contention relates to the performance of public functions. The agency must look to the content of

the record to resolve this issue. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

24-72-305. Allowance or denial of inspection - grounds - procedure - appeal.

(1) The custodian of criminal justice records may allow any person to inspect such

records or any portion thereof except on the basis of any one o

f the following grounds or

as provided in subsection (5) of this section:

(a) Such inspection would be contrary to any state statute;

(b) Such inspection is prohibited by rules promulgated by the supreme court or by the

order of any court.

(1.5) On the ground that disclosure would be contrary to the public interest, the

custodian of criminal justice records shall deny access to the results of chemical

biological substance testing to determine the genetic markers conducted pursuant to

sections 16-11-102.4, 16-11-104, 16-11-204.3, and 16-11-308 (4.5), C.R.S.

(2) to (4) Repealed.

(5) On the ground that disclosure would be contrary to the public interest, and unless

otherwise provided by law, the custodian may deny access to records of investigations

conducted by or of intelligence information or security procedures of any sheriff, district

attorney, or police department or any criminal justice investigatory files compiled for

any other law enforcement purpose.

(6) If the custodian denies access to any criminal justice record, the applicant may

request a written statement of the grounds for the denial, which statement shall be

provided to the applicant within seventy-

two hours, shall cite the law or regulation under

which access is denied or the general nature of the public interest to be protected by the

denial, and shall be furnished forthwith to the applicant.

(7) Any person denied access to inspect any criminal justice record covered by this part

3 may apply to the district court of the district wherein the record is found for an order

directing the custodian of such record to show cause why said custodian should not

permit the inspection of such record. A hearing on such application shall be held at the

earliest practical time. Unless the court finds that the denial of inspection was proper, it

shall order the custodian to permit such inspection and, upon a finding that the denial

was arbitrary or capricious, it may order the custodian to pay the applicant's court costs

and attorney fees in an amount to be determined by the court. Upon a finding that the

denial of inspection of a record of an official action was

arbitrary or capricious, the court

may also order the custodian personally to pay to the applicant a penalty in an amount

not to exceed twenty-five dollars for each day that access was improperly denied.

(8) The allowance or denial of the right to inspect criminal justice records that contain

specialized details of security arrangements or investigations shall be governed by

section 24-72-204 (2) (a) (VIII).

Source: L. 77: Entire part added, p. 1246, § 1, effective December 31. L. 78: IP(1)

amended and (2) to (4) repealed, pp. 403, 407, §§ 1, 4, effective May 5. L. 99: (1.5)

added, p. 1170, § 6, effective July 1. L. 2000:

(1.5) amended, p. 1266, § 6, effective May

26; (1.5) amended, p. 1028, § 8, effective July 1. L. 2002: (1.5) amended, p. 1024, § 44,

effective June 1; (1.5) amended, p. 1155, § 16, effective July 1. L. 2005: (8) added, p.

503, § 3, effective July 1. L. 2006: (1.5) amended, p. 1692, § 16, effective July 1, 2007.

L. 2007: (1.5) amended, p. 2040, § 61, effective June 1.

Editor's note: (1) Amendments to subsection (1.5) by House Bill 00-1166 and Senate Bill 00-

121 were harmonized.

(2) Amendments to subsection (1.5) by Senate Bill 02-159 and Senate Bill 02-019 were

harmonized.

ANNOTATION

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Court considers and weighs public interest in determining disclosure question. The

limiting language making certain of the public records provisions of Colorado's open records

laws applicable except as "prohibited by rules promulgated by the supreme court or by the order

of any court" are a reference to the rules of civil procedure and expresses the legislative intent

that a court should consider and weigh whether disclosure would be contrary to the public

interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Police personnel files and staff investigation reports not exempt from discovery.

The open

records provisions do not, ipso facto, exempt the personnel files and the staff investigation

bureau reports of the Denver police department from discovery in civil litigation. Martinelli v.

District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Investigative records resulting from internal affairs investigation are "criminal justice

records" under § 24-72-302 (4) because they were made and maintained in the exercise of an

authorized function of the department of corrections governed by administrative regulations.

Denial of access to the investigative records was proper because disclosure of the records

would be contrary t

o the public interest. Johnson v. Colo. Dept. of Corr., 972 P.2d 692 (Colo.

App. 1998).

Nondisclosure of police intelligence information. Trial court did not err in failing to permit

petitioner full access to a city police department's taped recordings of informant's statements in

which petitioner's name was mentioned where the tape could reasonably be classified as police

intelligence, where the informants statements became the basis for an internal police

investigation, and where the police had a legitimate interest in avoiding disclosure of

investigations of potential criminal conduct not ripe for prosecution. Prestash v. City of Leadville,

715 P.2d 1272 (Colo. App. 1985).

Coroners' autopsy reports are "public records" and not "criminal justice records", so that

autopsy report on homicide victim inspection by custodian thereof only pursuant to procedure

under the open records law requiring establishment that disclosure would do "substantial injury

to the public interest". Freedom Newspapers, Inc. v. Bowerman, 739 P.2d 881 (Colo. App.

1987).

If a private record seized from an individual is not relevant to the performance of the criminal

justice agency's public function, the record is not subje

ct to inspection. If, however, the record is

relevant to the agency's public function and the agency obtained the record in its public capacity

and no statute or court order prohibits inspection, the custodian may consider releasing the

record in response to an inspection request. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo.

2005).

Recordings seized by a sheriff's department and used by the department to investigate the

commission of crimes are criminal justice records subject to inspection. Harris v. Denver Post

Corp., 123 P.3d 1166 (Colo. 2005).

24-72-305.3. Private access to criminal history records of volunteers and employees

of charitable organizations.

(1) (Deleted by amendment, L. 2001, p. 1233, § 1, effective June 5, 2001.)

(2) (a) As used in this subsection (2):

(I) "Authorized agency" means a division or office of a state designated by a state to

report, receive, or disseminate information under the "Volunteers for Children Act",

contained in Public Law 105-251, as amended.

(II) "Bureau" means the Colorado bureau of investigation created in section 24-33.5-401.

(III) "Care" means the provision of care, treatment, education, training, instruction,

supervision, or recreation to children, the elderly, or individuals with disabilities.

(IV) "Convicted" means a conviction by a jury or by a court and shall also include a

deferred judgment and sentence agreement, a deferred prosecution agreement, a deferred

adjudication agreement, an adjudication, and a plea of guilty or nolo contendere.

(V) (Deleted by amendment, L. 2001, p. 1233, § 1, effective June 5, 2001.)

(V.2) "The elderly" means persons sixty years of age or older receiving care.

(V.5) "Individuals with disabilities" means persons with a mental or physical impairm

ent

who require assistance to perform one or more daily living tasks.

(VI) "Provider" shall have the same meaning as set forth in 42 U.S.C. sec. 5119c and

includes an owner of, an employee of, an applicant seeking employment with, or a

volunteer with a qualified entity.

(VII) "Qualified entity" means a business or organization, whether public, private, for-

profit, not-for-profit, or voluntary, that provides care or care placement services,

including a business or organization that licenses or certifies others to provide care or

care placement services.

(b) For the purpose of implementing the provisions of the "Volunteers for Children Act",

contained in Public Law 105-251, as amended, on and after July 1, 2000, each qualified

entity in the state may contact an authorized agency for the purpose of determining

whether a provider has been convicted of, or is under pending indictment for, a crime

that bears upon the provider's fitness to have responsibility for the safety and well-being

of children, the elderly, or individuals with disabilities. Such crimes shall include, but

need not be limited to:

(I) Felony child abuse, as specified in section 18-6-401, C.R.S.;

(II) A crime of violence, as defined in section 18-1.3-406, C.R.S.;

(III) Any felony offenses involving unlawful sexual behavior, as defined in section 16-

22-102 (9), C.R.S.;

(IV) Any felony, the underlying factual basis of which has been found by the court on

the record to include an act of domestic violence, as defined in section 18-6-800.3,

C.R.S.;

(V) Any felony offense in any other state, the elements of which are substantially s

imilar

to the elements of any one of the offenses described in subparagraphs (I) to (IV) of this

paragraph (b).

agency. The executive director of the department of public safety shall identify by rule,

consistent with applicable federal and state law, those entities that may serve as qualified

entities. In addition, the director of the department of public safety may promulgate all

reasonable and necessary rules to implement this subsection (2).

(II) For purposes of this subsection (2):

(A) The department of human services, created in section 24-1-120, may serve as an

authorized agency for those qualified entities that are regulated by the said department.

The state board of human services shall identify by rule, consistent with applicable

federal and state law, those entities that may serve as qualified entities. In addition, the

state board of human services may promulgate all reasonable and necessary rules to

implement this subsection (2).

(B) The department of public health and environment, created in section 24-1-119, may

serve as an authorized agency for those qualified entities that are regulated by said

department. The state board of health shall identify by rule, consistent with applicable

federal and state law, those entities that may serve as qualified entities. In addition, the

state board of health may promulgate all reasonable and necessary rules to implement

this subsection (2).

authorized agency for those qualified entities that are regulated by said department. The

state board of education shall identify by rule, consistent with applicable federal and

state law, those entities that may serve as qualified entities. In addition, the state board of

education may promulgate all reasonable and necessary rules to implement this

subsection (2).

(d) Any authorized agency reporting, receiving, or disseminating criminal history record

information pursuant to this subsection (2) shall request such information only through

the bureau. The bureau, in responding to such request, shall access records that are

maintained by or within this state and any other state or territory of the United States,

any other nation, or any agency or subdivision of the United States including, but not

limited to, the federal bureau of investigation in the United States department of justice.

Source: L. 95: Entire section added, p. 111, § 1, effective March 30. L. 2000: Entire

section amended, p. 1701, § 1, effective July 1. L. 2001: Entire section amended, p.

1233, § 1, effective June 5. L. 2002: (2)(b)(III) amended, p. 1189, § 32, effective July 1;

(2)(b)(II) amended, p. 1535, § 258, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending

subsection (2)(b)(II), see section 1 of chapter 318, Session Laws of Colorado 2002.

24-72-305.4. Governmental access to criminal history records of applicants in

regulated professions or occupations.

(1) Any division, board, commission, or person responsible for the licensing,

certification, or registration functions for any governmental entity, in addition to any

other authority conferred by law, may use fingerprints to access, for comparison

purposes, arrest history records of:

(a) Any applicant for licensure, registration, or certification to practice a profession or

occupation;

(b) Any licensee, registrant, or person certified to practice a profession or occupation;

certified to practice an occupation or profession.

(2) The persons or entities authorized to access arrest history records pursuant to

subsection (1) of this section may access records that are maintained by or within this

state through the Colorado bureau of investigation.

(3) For the purposes of this section, "governmental entity" means the state and any of its

poli

tical subdivisions, including entities governed by home rule charters, and any agency

or institution of the state or any of its political subdivisions.

Source: L. 94: Entire section added, p. 1048, § 1, effective July 1. L. 2002: IP(1) and

(2) amended, p. 977, § 14, effective June 1.

24-72-305.5. Access to records - denial by custodian - use of records to obtain

information for solicitation.

Records of official actions and criminal justice records and the names, addresses,

telephone numbers, and other information in such records shall not be used by any

person for the purpose of soliciting business for pecuniary gain. The official custodian

shall deny any person access to records of official actions and criminal justice records

unless such person signs a statement which affirms that such records shall not be used

for the direct solicitation of business for pecuniary gain.

Source: L. 92: Entire section added, p. 406, § 23, effective June 3.

ANNOTATION

Law reviews. For article, "Commercial Speech and Lawyer Access to Public Records", see 24

Colo. Law. 1313 (1995).

24-72-305.6. County clerk and recorder access to criminal history records of

election judges and employees.

(1) A county clerk and recorder shall request the criminal history records from the public

website maintained by the Colorado bureau of investigation for all full-time, part-time,

permanent, and contract employees of the county who staff a counting center and who

have any access to electromechanical voting systems or electronic vote tabulating

equipment. The county clerk and recorder shall request the records not less than once

each calendar year prior to the first election of the year.

(2) A county clerk and recorder may request, in his or her discretion, the criminal history

records from the public website maintained by the Colorado bureau of investigation for

an election judge serving in the county.

(3) A county clerk and recorder authorized to access criminal history records pursuant to

this section may access records that are maintained by or within this state directly

through the public website maintained by the Colorado bureau of investigation. A

county clerk and recorder that does not have access or authorization to use a credit card

for conducting business on behalf of the county in which the clerk and recorder serves

may request that the county sheriff for the county access the criminal records from the

public website maintained by the Colorado bureau of investigation. Criminal records

shall not be accessed pursuant to this section directly from the Colorado criminal justice

computer system or the national criminal justice computer system.

Source: L. 2006: Entire section added, p. 120, § 1, effective March 27.

24-72-306. Copies, printouts, or photographs of criminal justice records - fees

authorized.

(1) Criminal justice agencies may assess reasonable fees, not to exceed actual costs,

including but not limited to personnel and equipment, for the search, retrieval, and

copying of criminal justice records and may waive fees at their discretion. Where fees

for certified copies or other copies, printouts, or photographs of such records are

specifically prescribed by law, such specific fees shall apply. Where the criminal justice

agency is an agency or department of any county or municipality, the amount of such

fees shall be established by the governing body of the county or municipality.

(2) If the custodian does not have facilities for making copies, printouts, or photographs

of records which the applicant has the right to inspect, the applicant shall be granted

access to the records for the purpose of making copies, printouts, or photographs. The

copies, printouts, or photographs shall be made while the records are in the possession,

custody, and control of the custodian thereof and shall be subject to the supervision of

such custodian. When practical, they shall be made in the place where the records are

kept, but, if it is impractical to do so, the custodian may allow other arrangements to be

made for this purpose. If other facilities are necessary, the cost of providing them shall

be paid by the person desiring a copy, printout, or photograph of the records. The official

custodian may establish a reasonable schedule of times for making copies, printouts, or

photographs and may charge the same fee for the services rendered by him or his deputy

in supervising the copying, printing out, or photographing as he may charge for

furnishing copies under subsection (1) of this section.

Source: L. 77: Entire part added, p. 1248, § 1, effective December 31.

ANNOTATION

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Subsection (1) can be read in harmony with the requirement of Crim. P. 16 part V(c) so

that any costs for search or retrieval are limited to materials discoverable. Thus, an

agency is limited to reasonable fees for discoverable materials. People v. Trujillo, 114 P.3d 27

(Colo. App. 2004).

24-72-307. Challenge to accuracy and completeness - appeals.

(1) Any person in interest who is provided access to any criminal justice records

pursuant to this part 3 shall have the right to challenge the accuracy and completeness of

records to which he has been given access, insofar as they pertain to him, and to request

that said records be corrected.

(2) If the custodian refuses to make the requested correction, the person in interest may

request a written statement of the grounds for the refusal, which statement shall be

furnished forthwith.

(3) In the event that the custodian requires additional time to evaluate the merit of the

request for correction, he shall so notify the applicant in writing forthwith. The custodian

shall then have thirty days from the date of his receipt of the request for correction to

evaluate the request and to make a determination of whether to grant or refuse the

request, in whole or in part, which determination shall be forthwith communicated to the

applicant in writing.

(4) Any person in interest whose request for correction of records is refused may apply

to the district court of the district wherein the record is found for an order directing the

custodian of such record to show cause why he should not permit the correction of such

record. A hearing on such application shall be held at the earliest practical time. Unless

the court finds that the refusal of correction was proper, it shall order the custodian to

make such correction, and, upon a finding that the refusal was arbitrary or capricious, it

may order the criminal justice agency for which the custodian was acting to pay the

applicant's court costs and attorney fees in an amount to be determined by the court.

Source: L. 77: Entire part added, p. 1248, § 1, effective December 31.

24-72-308. Sealing of records.

(1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph

(a), any person in interest may petition the district court of the district in which any

arrest and criminal records information pe

rtaining to said person in interest is located for

the sealing of all of said records, except basic identification information, if the records

are a record of official actions involving a criminal offense for which said person in

interest was not charged, in any case which was completely dismissed, or in any case in

which said person in interest was acquitted.

(II) Except as provided in subparagraph (III) of this paragraph (a), arrest or criminal

records information may not be sealed if:

(A) An offense is not charged due to a plea agreement in a separate case;

(B) A dismissal occurs as part of a plea agreement in a separate case; or

n, fines, court costs, late fees, or other fees ordered

by the court in the case that is the subject of the petition to seal criminal records, unless

the court that entered the order for restitution, fines, court costs, late fees, or other fees

has vacated such order.

(III) A person in interest may petition the district court of the district in which any arrest

and criminal records information pertaining to said person in interest is located for the

sealing of all of said records, except basic identification information, if the records are a

record of official actions involving a criminal offense that was not charged or a case that

was dismissed due to a plea agreement in a separate case, and if:

(A) The petition is filed fifteen years or more after the date of the final disposition of all

criminal proceedings against the person in interest; and

(B) The person in interest has not been charged for any criminal offense in the fifteen

years since

the date of the final disposition of all criminal proceedings against the person

in interest.

(b) (I) Any petition to seal criminal records shall include a listing of each custodian of

the records to whom the sealing order is directed and any information which accurately

and completely identifies the records to be sealed.

(II) (A) Upon the filing of a petition, the court shall review the petition and determine

whether there are grounds under this section to proceed to a hearing on the petition. If

the court determines that the petition on its face is insufficient or if the court determines

that, after taking judicial notice of matters outside the petition, the petitioner is not

entitled to relief under this section

, the court shall enter an order denying the petition and

mail a copy of the order to the petitioner. The court's order shall specify the reasons for

the denial of the petition.

(B) If the court determines that the petition is sufficient on its face and that no other

grounds exist at that time for the court to deny the petition under this section, the court

shall set a date for a hearing and the petitioner shall notify the prosecuting attorney by

certified mail, the arresting agency, and any other person or agency identified by the

petitioner.

(1) is conducted and if the court finds that the harm to the privacy of the petitioner or

dangers of unwarranted adverse consequences to the petitioner outweigh the public

interest in retaining the records, the court may order such records, except basic

identification information, to be sealed. Any order entered pursuant to this paragraph (c)

shall be directed to every custodian who may have custody of any part of the arrest and

criminal records information which is the subject of the order. Whenever a court enters

an order sealing criminal records pursuant to this paragraph (c), the petitioner shall

provide the Colorado bureau of investigation and every custodian of such records with a

copy of such order. Thereafter, the petitioner may request and the court may grant an

order sealing the civil case in which the records were sealed.

(d) Upon the entry of an order to seal the records, the petitioner and all criminal justice

agencies may properly reply, upon any inquiry in the matter, that no such records exist

with respect to such person.

(e) Inspect

ion of the records included in an order sealing criminal records may thereafter

be permitted by the court only upon petition by the person who is the subject of such

records or by the prosecuting attorney and only for those purposes named in such

petition.

(f) (I) Employers, educational institutions, state and local government agencies, officials,

and employees shall not, in any application or interview or in any other way, require an

applicant to disclose any information contained in

sealed records. An applicant need not,

in answer to any question concerning arrest and criminal records information that has

been sealed, include a reference to or information concerning such sealed information

and may state that no such action has ever occurred. Such an application may not be

denied solely because of the applicant's refusal to disclose arrest and criminal records

information that has been sealed.

(II) Subparagraph (I) of this paragraph (f) shall not preclude the bar committee of the

Colorado state board of law examiners from making further inquiries into the fact of a

conviction which comes to the attention of the bar committee through other means. The

bar committee of the Colorado state board of law examiners shall have a right to inquire

into the moral and ethical qualifications of an applicant, and the applicant shall have no

right to privacy or privilege which justifies his refusal to answer to any question

concerning arrest and criminal records information that has come to the attention of the

bar committee through other means.

(g) Nothing in this section shall be construed to authorize the physical destruction of any

criminal justice records.

(1.5) For the purpose of protecting the author of any correspondence which becomes a

part of criminal justice records, the court having jurisdiction in the judicial district in

which the criminal justice records are located may, in its discretion, with or without a

hearing thereon, enter an order to seal any information, including, but not limited to,

basic identification information contained in said correspondence. However, the court

may, in its discretion, enter an order which allows the disclosure of sealed information to

defense counsel or, if the defendant is not represented by counsel, to the defendant.

(2) Advisements.

Whenever a defendant has charges against him dismissed, is acquitted,

or is sentenced following a conviction, the court shall provide him with a written

advisement of his rights concerning the sealing of his criminal justice records if he

complies with the applicable provisions of this section.

(3) Exceptions. (a) This section shall not apply to records pertaining to:

(I) Any class 1 or class 2 misdemeanor traffic offense;

(II) Any class A or class B traffic infraction; or

(III) Any conviction for a violation of section 42-4-1301 (1) or (2), C.R.S.

(b) Court orders sealing records of official actions entered pursuant to this section shall

not limit the operation of rules of discovery promulgated by the supreme court of

Colorado.

which the factual basis involved unlawful sexual behavior, as defined in section 16-22-

102 (9), C.R.S.

(d) This section shall not apply to arrest and criminal justice information or criminal

justice records in the possession and custody of a criminal justice agency when inquiry

concerning the arrest and criminal justice information or criminal justice records is made

by another criminal justice agency.

Source: L. 77: Entire part added, p. 1249, § 1, effective December 31. L. 78:

(1) and (2)

amended, (1.1) to (1.3) and (9) added, and (3)(b) repealed, pp. 403, 406, §§ 2, 3,

effective May 5. L. 79: (1)(a), (1.1)(c) to (1.1)(f), and (9) amended and (10) added, p.

975, § 1, effective March 13. L. 81:

Entire section R&RE, p. 1238, § 2, effective June 4.

L. 82: (2)(b)(I), (2)(b)(II), and (5)(a) amended, p. 655, § 8, effective January 1, 1983. L.

83: (1)(a) amended, p. 680, § 4, effective July 1; (2)(i) and (3)(c)(II) amended, p. 963, §

11, effective July 1, 1984. L. 87: (5)(a) amended, p. 1498, § 8, effective July 1. L. 88:

Entire section R&RE, p. 979, § 3, effective April 20. L. 92: (1.5) added, p. 281, § 1,

effective July 1; (3) amended, p. 1106, § 7, effective July 1. L. 95: (3)(a) amended, p.

314, § 1, effective July 1. L. 96: (1)(a) amended, p. 736, § 5, effective July 1; (3)(c)

amended and (3)(d) added, p. 1587, § 13, effective July 1. L. 2002: (3)(c) amended, p.

1190, § 33, effective July 1. L. 2003: (1)(b)(II) amended, p. 634, § 1, effective March

18. L. 2004: (1)(a) amended, p. 1375, § 1, effective August 4. L. 2006: (1)(a)(II)

amended, p. 422, § 4, effective April 13.

ANNOTATION

Law reviews. For article, "Punitive Damages in Wrongful Discharge Cases", see 15 Colo. Law.

658 (1986). For article, "Sealing Criminal Records in Colorado", see 21 Colo. Law. 247 (1992).

Section indicates the general assembly's intent to preserve the complete criminal justice

record, but in a form that protects the individual named from any harmful effects. People v.

Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Physical destruction of records not generally allowed. By fashioning the remedy of sealing

records, the general assembly did not intend that the physical destruction of the records also be

allowed in most situations. People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

The court must balance the competing interests in determining whether criminal records

should be sealed, and its decision in this regard may not be overturned on appeal absent an

abuse of that discretion. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001).

Since this section concerns the sealing of criminal records and juvenile delinquency

proceedings are noncriminal in nature, the trial court should have proceeded under the

expungement provisions set forth in § 19-1-306

when considering a petition to seal arrest and

criminal records relating to a juvenile delinquency case. C.B. v. People, 122 P.3d 1065 (Colo.

App. 2005).

Once the court determines that arrest records and criminal justice information should be

sealed, subsection (1)(c) requires the order to be directed to every custodian having

custody of any of the records to be sealed. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001).

No irreconcilable conflict or inconsistency between the sealing provisions of this section

and § 19-3-313 (7)(a) and (9). Because they deal with the same subject, all of these provisions

should be given effect. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001) (decided before the 2004

repeal of § 19-3-313).

There is no basis under either statutory scheme for exempting criminal records held by the

Boulder county department of social services from the application of the sealing provisions of

this section. Rather, the provisions apply to the police reports in the possession of the Boulder

county department of social services, but do not apply to its own investigative records or to the

remainder of its files. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001) (decided before the 2004

repeal of § 19-3-313).

An individual may deny his past criminal record. Subsection (3)(f)(I) (now subsection

(1)(f)(I)) clearly allows an individual to deny past criminal involvement if the criminal record has

been sealed pursuant to the provisions of subsection (3)(c)(I) (now subsection (1)(c)(I)). In

making a determination, the trial court should consider the severity of the offense sought to be

sealed, the time which has elapsed since the conviction, the subsequent criminal history of the

petitioner, and the need for the government agency to retain the records. D.W.M. v. District

Court, 751 P.2d 74 (Colo. 1988); People v. Bushu, 876 P.2d 106 (Colo. App. 1994).

Where a petitioner requests to seal criminal records of an acquittal, the court may also

consider factors relating to the strength of the case, petitioner's age and employment history,

and various consequences if the records are not sealed. The balance test allows for

consideration of other factors on a case-by-case basis. People v. Bushu, 876 P.2d 106 (Colo.

App. 1994).

Where all charges against the petitioner were dismissed or resulted in acquittal, the

severity of the charges is not a factor supporting denial of a petition to seal the records.

anything, in an acquittal context, the fact that the charges of which the petitioner was acquitted

were serious increases the potential harm to the petitioner if the records are not sealed. R.J.Z. v.

People, 104 P.3d 278 (Colo. App. 2004).

There is no reason to attach any significance to a brief lapse of time since the trial when the

sealing of records is sought after an acquittal. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Assessing the strength of the case against a defendant based on the length of jury deliberations

is necessarily speculative and does not, without more, establish that the prosecution's case was

strong. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Where all charges of sexual misconduct were dismissed or resulted in acquittal, the petitioner's

desire to pursue employment that will permit the petitioner to supervise and be alone with

children could not warrant keeping the records unsealed, given the absence of other factors

supporting denial of the petition to seal the records. R.J.Z. v. People, 104 P.3d 278 (Colo. App.

2004).

Petitioner's punishment was increased retroactively in violation of the ex post facto

clause of the Colorado Constitution when petitioner was denied the automatic entry of an

order limiting access to records relating to the charge against her because the trial court applied

an amendment of the statute enacted after petitioner committed her crime. In re R.B., 815 P.2d

999 (Colo. App. 1991).

The opportunity to petition and to have the balancing test applied in a hearing under this

section is not a vested or a substantive right. People v. D.K.B., 843 P.2d 1326 (Colo. 1993);

E.J.R. v. District Court, County of Boulder, 892 P.2d 222 (Colo. 1995).

Therefore, where petitioner was convicted prior to the 1988 amendment to subsection

(1)(a) but did not petition for sealing prior to the amendment, applying the provisions of the

amendment to the petitioner did not violate the constitutional prohibition against retrospective

legislation. People v. D.K.B., 843 P.2d 1326 (Colo. 1993).

Convicted felon, however, has vested privacy interest in sealed criminal records as of the

date of the court's final order to seal the records and expiration of the appeal period, regardless

of whether the court, having proper subject matter jurisdiction to seal criminal records,

inappropriately authorized the sealing of felony records. The judgment may have been

erroneous, but is not void. E.J.R. v. District Court, County of Boulder, 892 P.2d 222 (Colo. 1995).

An order entered under subsection (1)(c) to seal records must be directed to every

custodian having custody of any of the records to be sealed. In re Petition of T.L.M., 39 P.3d

1239 (Colo. App. 2001).

A waiver of the right to request sealing of records is not contrary to public policy. Rather,

public policy favors the enforcement of a defendant's express waiver of the statutory right to

request sealing of criminal records. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003);

Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).

Applied in Tipton v. City of Lakewood ex rel. People, 198 Colo. 18, 595 P.2d 689 (1

979); People

v. Whittle, 628 P.2d 169 (Colo. App. 1981); People v. Chamberlin, 74 P.3d 489 (Colo. App.

2003).

24-72-309. Violation - penalty.

Any person who willfully and knowingly violates the provisions of this part 3 is guilty

of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more

than one hundred dollars, or by imprisonment in the county jail for not more than ninety

days, or by both such fine and imprisonment.

Source: L. 77: Entire part added, p. 1250, § 1, effective December 31.

ANNOTATION

Applied in People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

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