Table of Contents
- 1 Disclaimer
- 2 Introduction
- 3 Colorado Open Records Act
- 3.1 Background
- 3.2 What is a public record?
- 3.3 Who may request public records?
- 3.4 Jurisdictions subject to CORA
- 3.5 Nonprofits and other non-governmental entities
- 3.6 Judicial department administrative records
- 3.7 Requesting records
- 3.8 Response time
- 3.9 Fees
- 3.10 Challenging a denial
- 3.11 Digital records, spreadsheets and databases
- 3.12 Discretionary exemptions from disclosure
- 3.13 Mandatory exemptions from disclosure
- 3.14 Personnel files
- 3.15 Records of finalists for chief executive officer positions
- 3.16 Records of applicants for other employment positions
- 3.17 Emails and text messages
- 3.18 Work product
- 3.19 Records retention
- 3.20 Attorney-client privilege
- 3.21 Settlement agreements
- 3.22 Voted ballots
- 3.23 Autopsy reports
- 3.24 Birth and death records
- 4 Colorado Criminal Justice Records Act
- 4.1 Background
- 4.2 What is a criminal justice record?
- 4.3 Agencies subject to CCJRA
- 4.4 Records of “official action”
- 4.5 Arrest and criminal records information
- 4.6 Investigative records and arrest affidavits
- 4.7 “Contrary to the public interest”
- 4.8 Body-worn camera and dashboard camera footage
- 4.9 Internal affairs files
- 4.10 Brady lists
- 4.11 Response time
- 4.12 Fees
- 4.13 Pecuniary gain statement
- 4.14 Mug shots
- 4.15 Challenging a denial
- 4.16 Sexual assault and child victims
- 4.17 Sealing criminal records
- 5 Juvenile Records and Proceedings
- 6 Jail Records
- 7 Colorado Open Meetings Law
- 7.1 Background
- 7.2 Jurisdictions subject to the COML
- 7.3 What is a “meeting”?
- 7.4 Notice requirements
- 7.5 Emailing and text messaging
- 7.6 Minutes and electronic recordings
- 7.7 Executive sessions
- 7.8 Secret ballots
- 7.9 Public comments
- 7.10 Challenging a violation
- 7.11 Common Sunshine Law violations
- 8 Reporter’s Shield Law
- 9 Cameras in the courtroom
- 10 Judicial branch records
- 11 Federal Freedom of Information Act
This document is provided as a public service and for informational purposes only. It is not intended to consist of, nor shall it be construed to contain, any legal advice. Additionally, no statements or interpretation of law contained herein shall be deemed binding on the contributors to this guide.
Welcome to the Colorado Freedom of Information Coalition’s revised and updated “Guide to Colorado’s Open Records and Open Meetings Laws.”
For the first time, CFOIC’s sunshine laws guide is available in an online format that is searchable and indexed by topic. (Printed copies of the 2019 version are still available for purchase at $2 apiece.) Use the interactive table of contents to go directly to a topic. To quickly search for a keyword or phrase, use Control+F or Command+F (or the Find on Page function on your phone’s browser) .
Why should Coloradans learn about our state’s open-government laws, generically known as the sunshine laws? The Colorado Supreme Court succinctly answered that question in a 1983 ruling (Cole v. State): “A free self-governing people needs full information concerning the activities of its government not only to shape its views of policy and to vote intelligently in elections, but also to compel the state, the agent of the people, to act responsibly and account for its actions.”
The sunshine laws help you effectively participate in government at the state and local level, and they are essential tools for journalists covering government. This guide covers commonly cited provisions of the Colorado Open Records Act and the Colorado Criminal Justice Records Act — the two statutes that define your rights to inspect the records of state and local government entities — and the Colorado Open Meetings Law, which ensures that government bodies conduct the public’s business in public, with only a few exceptions. The guide links to pertinent statutory provisions and case law, and it offers tips for getting the records and access to meetings you’re entitled to under the law. It also includes information on access to court records and proceedings and the state judicial branch’s administrative records, and it lists some great resources for learning about the Freedom of Information Act, the federal law that establishes your right to inspect the records of U.S. government agencies.
Thank you to CFOIC President Steve Zansberg of the Law Office of Steven D. Zansberg, LLC for reviewing the material presented here.
IF YOU FIND THE INFORMATION IN THIS GUIDE USEFUL, PLEASE SUPPORT OUR WORK BY MAKING A TAX-DEDUCTIBLE DONATION TO THE COLORADO FREEDOM OF INFORMATION COALITION. CFOIC IS A 501(c)(3) NONPROFIT THAT RELIES ON MEMBERSHIP DUES, GRANTS AND GIFTS.
Questions? Email CFOIC’s freedom-of-information hotline or call 720-274-7177.
Browse hundreds of articles and commentaries about open-government and First Amendment issues on CFOIC’s blog.
— Jeff Roberts, Executive Director, Colorado Freedom of Information Coalition
© 2021 Colorado Freedom of Information Coalition
Enacted by the state legislature in 1968, two years after Congress adopted the federal Freedom of Information Act, the statute now known as the Colorado Open Records Act (CORA) begins with a broad and powerful statement: “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.”
CORA covers public access to the records of government at the state and local level, except for criminal justice records. A separate law added in 1977, the Colorado Criminal Justice Records Act (CCJRA), governs the disclosure of records kept by criminal law enforcement agencies (e.g., police departments, sheriff’s offices, district attorneys, the Colorado Bureau of Investigation, the Colorado Department of Corrections).
CORA establishes a strong presumption that non-criminal justice records are open for public inspection unless a specific provision of CORA or another state law indicates otherwise, or inspection is prohibited by federal law or a court order. CORA specifies some categories of records that must be withheld; other categories of records may be withheld on the grounds that disclosure would be “contrary to the public interest.”
For some types of state and local records, the answer to a question of openness or confidentiality lies in case law, which consists of judicial decisions that may be worth citing in your records request because they set precedent or are persuasive.
The best time to evaluate whether a record truly is exempt from disclosure is after a government records custodian has responded to your request, preferably in writing, with a statutory citation that serves as grounds for withholding the record(s). In other words, “ask first,” then evaluate any denial.
The definition of public records includes all “writings” made, maintained or kept by the state or any agency, institution or political subdivision “for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.” C.R.S. § 24-72-202(6)(a)(I). This means the content of the record must discuss some public business, as opposed to purely private matters. The definition of public records also includes the “correspondence” of elected officials, with some exceptions. C.R.S. § 24-72-202(6)(a)(II).
“Writings” includes books, papers, maps, photographs, cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics, as well as digitally stored data, including electronic mail and text messages. The definition excludes computer software. C.R.S. § 24-72-202(7).
Who may request public records?
Public records are open for inspection by “any person,” defined as a natural person as well as any corporation, limited liability company, partnership, firm or association. C.R.S. § 24-72-201 and C.R.S. § 24-72-202(3). Unlike some other states, Colorado does not have a residency requirement for requesting public records. And because non-exempt records are declared to be open for public inspection and copying, you do not need to state any particular reason for seeking public records. “Fishing expeditions” are authorized but can be expensive; casting a narrower “net” may limit the fees you are charged.
Jurisdictions subject to CORA
CORA provides for access to non-exempt public records of every city, town, county, city and county, school district, special district, public highway authority, regional transportation authority, housing authority and state institution of higher education. The governor’s office, state agencies and the general assembly also are subject to CORA. C.R.S. § 24-72-202(5) and C.R.S. § 24-72-202(6)(a)(I).
Nonprofits and other non-governmental entities
CORA also applies to an “agency or instrumentality” of a political subdivision, which includes a private entity to which the government has delegated governmental authority. Zubeck v. El Paso County Retirement Plan (Colo. Ct. of Appeals, 1998)
Nonprofit organizations, to be subject to CORA, must meet certain criteria related to their involvement with a public agency. Factors include but are not limited to: level of public funding; whether the private entity performs a function a public agency would otherwise perform; the extent of a public agency’s oversight and control; and whether the private entity was created by a public agency. Denver Post Corp. v. Stapleton Development Corp. (Colo. Court of Appeals, 2000).
Judicial department administrative records
The administrative records of Colorado’s judicial branch are not subject to CORA. Office of State Court Administrator v. Background Information Services Inc. (Colo. Supreme Court, 1999); Gleason v. Judicial Watch, Inc. (Colo. Court of Appeals, 2012).
The Colorado Supreme Court has adopted its own rules of public access to the administrative records of the judicial branch, some of which deviate from CORA. Documents on file in civil and criminal court cases are subject to public inspection in accordance with separate Colorado Supreme Court rules. (For more, see this section of the guide.)
Unless you know specifically what you are looking for, get familiar with the types of records kept by the government entity. The records you seek may have been posted online, either by the entity itself or by another requester. Do a web search and check the entity’s website and/or its open data portal if it has one. The public records repository on MuckRock, a collaborative nonprofit news site, may include requests similar to yours.
Before drafting a formal records request, it is often helpful to speak or email with the official records custodian (the person who has possession, custody or control of a public record) or someone else who knows what records the agency maintains. Nothing prevents you from simply asking for public records outside of the CORA process. Journalists sometimes avoid filing written CORA requests so that other journalists don’t see what they’ve requested (CORA logs are public records). But some government entities may require you to “file a CORA.” And using the law can be advantageous for you: Government entities must respond to a CORA request and must do so within a certain time period specified in the law. Submitting a written request starts the clock; it also creates a paper trail when you need to follow up.
Some governments and agencies want you to use their special form for making an open-records request. If it’s not roomy enough to describe your request, or to include recommended language from CFOIC’s template, attach your own letter or send it separately.
Figure out where to send your request. For cities and counties, the clerk is typically the records custodian. At larger governmental bodies and agencies, a public information officer sometimes serves as the contact for public records requests. Check the government entity’s website.
Download CFOIC’s template for writing a CORA request letter. The template also cites the Colorado Criminal Justice Records Act. (If you’re sure your request only covers records subject to CORA, you can delete the CCJRA citation.)
- Be specific when you know what you’re looking for, such as a particular document. Listing easily identifiable records will more likely generate a timely response and limit the fees you may be charged.
- If you’re interested in a particular subject matter, you could request “any and all” records related to that subject or records “including, but not limited to” particular documents that likely exist regarding that topic. But casting a wide net can make a request more costly to process and may prompt delays. Try not to be vague or overly broad. Adding context, such as keywords and date parameters, will help the custodian locate the records you’re seeking.
- Ask for records, not information. Government entities aren’t required to provide information, but they are required to provide public records that contain information.
- Research the types of records kept by the government entity you’re interested in. For example, if the records are maintained by the Colorado Department of Labor and Employment, do a Google search for “site:https://cdle.colorado.gov/ filetype:pdf”. This will show you PDFs posted online by the agency. An agency’s records retention schedule may list the types of documents it maintains.
- Be willing to talk through your request with the records custodian. Be respectful but persistent.
- Ask for a cost estimate before the request is processed. If research-and-retrieval charges are cost prohibitive, you may be able to narrow your request. It’s often helpful to talk this over with the records custodian.
- Ask for a fee waiver if the requested records are to be used for a public purpose such as nonprofit activities, journalism or academic research. Fee waivers, however, are discretionary.
- Always ask for a written explanation if all or any portion of your request is denied, including a citation of each statutory exemption used to justify the withholding of records. CORA entitles you to a written explanation of the grounds for any denial.
- Ask that public records maintained in a sortable or searchable digital format, such as a spreadsheet or a searchable PDF, be provided to you in a digital format. CORA entitles you to digital public records in digital formats.
Three working days
For records that are “not readily available,” the date and hour set for inspection is supposed to be within a “reasonable time” after a request is made. CORA presumes a “reasonable time” to be three working days or less. C.R.S. § 24-72-203(3)(b). Records that are “readily available” should be provided right away.
To extend the three-working-day response period by no more than seven working days (for a total of 10), a records custodian must provide the requester — during the initial three-working-day period — with a written explanation of “extenuating circumstances.” Such circumstances are spelled out in the statute and mostly concern broadly stated and large requests. “In no event can extenuating circumstances apply to a request that relates to a single, specifically identified document.” C.R.S. § 24-72-203(3)(b) and C.R.S. § 24-72-203(3)(c).
Records sent by mail and email
A requester may ask for records to be sent by mail, fax or email, but the custodian may not charge a transmission fee to send records via email. Upon receiving payment for any fees or having made arrangements to receive payment at a later date, the custodian must send the records “as soon as practicable” or within three business days. C.R.S. § 24-72-205(1)(b).
The cost of a copy cannot exceed 25 cents per standard-sized page or the “actual cost” of providing a copy, printout or photo of a public record in a format other than a standard page. C.R.S. § 24-72-205(5)(a).
Research and retrieval
To research, retrieve and compile public records, governments and agencies may charge requesters no more than $33.58 per hour, with the first hour provided at no charge. This typically includes attorney time for privilege review. The maximum allowable hourly rate was adjusted for inflation on July 1, 2019, and is adjusted every five years. Note: A government entity may not charge for research and retrieval unless it has published its fee policy on its website or in some other written form prior to the date the request was received. C.R.S. § 24-72-205(6).
A “reasonable fee,” not to exceed the actual cost, may be charged if a government entity has, in response to a request, manipulated data to generate a record in a form not maintained by the government. C.R.S. § 24-72-205(3). This provision does not apply to the production of a digitized database record with one or more fields redacted on grounds of confidentiality; only research-and-retrieval fees may be charged for such redaction, provided it takes more than one hour.
For copies or printouts of records that are the result of computer output other than word processing, custodians may charge a fee based on recovering system costs. The fee may be reduced or waived for requesters working for public purposes such as journalism, nonprofit activities and academic research. C.R.S. § 24-72-205(4).
Tips for limiting what you’ll pay for CORA records
- Check the government entity’s website to make sure it has published a CORA fee policy, as required by the statute before an entity is permitted to charge for research and retrieval.
- Request a fee estimate in advance and, if necessary, an itemized invoice of the charges. If, for example, the records custodian says it will take 15 hours to process your request, ask for an explanation of what is required to conduct the search.
- Be as specific as you can to help the custodian find the records you’re seeking. When requesting emails, list parameters such as dates, senders, receivers and terms to search.
- Speak or email with the records custodian about ways to narrow the scope of your request.
- Ask an elected official for that government entity to make the request for you.
- Share the cost with other requesters. Reach out to other individuals, nonprofits or news organizations that might be interested in the same records.
- Crowdfund the cost of your request using MuckRock or a social media platform.
- Ask for a discretionary fee waiver or reduction if the records are to be used for a “public purpose” such as journalism, nonprofit activities or academic research. For records that are the result of computer output, other than word processing, fee waivers and reductions must be uniformly applied among requesters who are similarly situated.
- Use your smartphone or a portable scanner to copy paper records rather than pay for paper copies (although some entities forbid this practice).
- Ask for digital records to be emailed to you, at no charge for transmission, or placed on a cloud drive instead of requesting paper copies.
Challenging a denial
Ask for a written explanation
If denied access to a public record, the first step is to request a written statement (if you have not already received one) that explains the grounds and cites the particular law(s) or regulation(s) that allows withholding. C.R.S. § 24-72-204(4).
- Check to see if the exemption actually applies to the record(s). Look up the statute or contact CFOIC.
- If the exemption is valid, but it only applies to certain information contained in a record, ask for a redacted version.
- Consult with an attorney who may try calling or writing the records custodian to make a legal argument for the disclosure of the record(s) you’re seeking.
- If you are a journalist, consider doing a story or a social media post about why the records aren’t available for public inspection.
If you get no response
Call the records custodian to make sure your request wasn’t caught in a spam filter or otherwise overlooked. Email the records custodian with a polite note that references CORA’s required response time. If you’re still ignored, contact the agency head or the elected officials who oversee the agency or government entity.
Filing a lawsuit is the last resort if the custodian’s explanation for a denial is still inadequate. You may apply to district court for an order directing the custodian to “show cause” why inspection of the record(s) should not be permitted. At least 14 days prior to doing so, however, you must let the records custodian know in writing that you intend to file a lawsuit. During the 14-day period, the records custodian is required to talk with you, in person or by phone, “to determine if the dispute may be resolved” without going to court. If you explain in writing an “expedited need” for the records, the notice period is three business days and no meeting is required. C.R.S. § 24-72-204(5)(a).
A court hearing must be held “at the earliest practical time.” Unless the court finds the denial was proper, it must order the custodian to permit inspection of the records. Court costs and reasonable attorney fees are awarded to a prevailing applicant “in an amount to be determined by the court.” Court costs and reasonable attorney fees are awarded to the custodian only if the judge determines that the lawsuit was “frivolous, vexatious or groundless.” C.R.S. § 24-72-204(5)(b).
A requester can be a “prevailing applicant” even if a court order permits inspection of fewer than all the records sought by the applicant. Benefield v. Colorado Republican Party (Colo. Supreme Court, 2014).
Alternative dispute resolution
Unlike some other states, Colorado offers no administrative mechanism for appealing a records denial without going to court. CORA states only that during the 14-day period before a lawsuit is filed, the required meeting between the records custodian and the requester “may include recourse to any method of dispute resolution that is agreeable to both parties. Any common expense necessary to resolve the dispute must be apportioned equally between or among the parties unless the parties have agreed to a different method of allocating the costs between or among them.” C.R.S. § 24-72-204(5)(a).
No criminal penalty
CORA formerly specified a misdemeanor penalty — punishable by a $100 fine and/or 90 days in jail — for “willfully and knowingly” violating the law. The legislature removed this statutory provision in 2017.
If “deliberative process” privilege is asserted to withhold records, the government is claiming that the “material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government.” When invoking this exemption, the records custodian must produce an affidavit “specifically describing each document withheld, explaining why each such document is privileged, and why disclosure would cause substantial injury to the public interest.”
If you believe the privilege has been misapplied, you can require the custodian to ask a district court for permission to restrict disclosure. The court will determine whether the need for confidentiality outweighs the public interest in disclosing the records. C.R.S. § 24-72-204(3)(a)(XIII).
Pro se challenges
Challenging a denial in court without a lawyer is permitted for individuals but not allowed for corporations or other entities that aren’t “natural persons.” CFOIC maintains a filed pleadings inventory as general information for anyone interested in proceeding “pro se” (without an attorney).
When the requester can be sued
A records custodian may seek a court order to restrict the disclosure of records that might otherwise be available for public inspection if he or she believes unique circumstances exist that would “do “substantial injury to the public interest,” even though no exemption in the CORA specifically applies to the record(s) at issue. A custodian also may go to court to seek judicial clarification if he or she cannot, in good faith, determine if disclosure of certain records is prohibited. In that latter circumstance, the records requester cannot recover attorney fees if the court finds that the custodian truly was unable to determine, without a court ruling, whether disclosure of a public record was prohibited. C.R.S. § 24-72-204(6)(a).
The “writings” referenced in CORA’s definition of public records specifically include “digitally stored data.” C.R.S. § 24-72-202(7). A CORA provision added in 2017 clarifies the public’s right to obtain copies of digital public records in useful file formats. C.R.S. § 24-72-203(3.5).
If public records are kept in “sortable” formats, you are entitled to copies in sortable formats. For example, if records are kept in a spreadsheet, you should be able to get them in a comma-separated-values (CSV) file, or in some other file format that can easily be imported into a spreadsheet or a database manager.
If public records are kept in “searchable” formats, you are entitled to copies in searchable formats. You should get, for example, a searchable PDF rather than an image-only PDF or a printout.
Altering a public record to remove information that cannot be disclosed under CORA does not constitute the creation of a new record. (This language is intended to ensure that public records are not withheld from a requester because a data set contains some confidential field or fields that must be deleted.)
If it’s not “technologically or practically feasible” to delete confidential information from records or to provide records in searchable or sortable formats, the records must be provided in an “alternate” format or the custodian can issue a denial.
If a denial is challenged in court, CORA provisions apply regarding the recovery of court costs and attorney fees. But if records are provided in an alternate format, and a court later finds they should have been provided in the requested format, attorney fees may be awarded only if the records custodian’s action was “arbitrary and capricious.”
A custodian must make “reasonable inquiries” before deciding that a request is not technologically or practically feasible. A custodian also must declare in writing why records cannot be provided in the requested format.
Discretionary exemptions from disclosure
CORA specifies categories of records that may be withheld on the grounds that disclosure would be “contrary to the public interest.” C.R.S. § 24-72-204(2)(a). News media requests for such records must be treated equally. C.R.S. § 24-72-204(2)(b). Discretionary exemptions include:
- Records of investigations conducted by any sheriff, prosecuting attorney or police department; records of the intelligence information or security procedures of these same officials; any investigatory files compiled for any other law enforcement purpose. (Also see this guide’s criminal justice records section).
- Records of any ongoing civil or administrative investigation conducted by a state agency “unless the investigation focuses on a person or persons inside of the investigative agency.” Upon completion of a civil or administrative investigation, any record not exempt from disclosure under another statutory provision is open for public inspection.
- Test questions on licensing, employment or academic exams, but scores are available to the person in interest.
- Details of research projects conducted by a state institution, including research undertaken by legislative staff or the governor’s office in connection with pending or anticipated legislation.
- Real estate appraisals until title is transferred.
- Data generated by the Department of Transportation’s bid analysis and management system.
- Identifying information in motor vehicle license records.
- Email addresses provided by people to agencies, institutions or political subdivisions of the state.
- Specialized details of security arrangements or investigations or the physical and cyber assets of critical infrastructure. Records of the expenditure of public money on security arrangements or investigations are open for inspection.
Mandatory exemptions from disclosure
CORA specifies categories of records that must be withheld except to the person in interest. C.R.S. § 24-72-204(3)(a). These include:
- Medical, mental health, sociological and scholastic achievement data as well as electronic health records. However, a coroner’s autopsy report is open for inspection. Scholastic information on finalists for chief executive positions is available. Group scholastic achievement data is available, provided that individuals cannot be identified.
- Marriage and civil union license applications. However, marriage and civil union licenses are public records.
- Personnel files. However, this exemption is narrowly limited to “home addresses, telephone numbers, (personal) financial information,” and other similar “personal, demographic information” maintained because of the employer-employee relationship. C.R.S. § 24-72-202(4.5); Daniels v. City of Commerce City (Colo. Court of Appeals, 1999). For more, see this guide’s section on personnel files.
- Letters of reference.
- Trade secrets, privileged information and confidential commercial, financial, geological or geophysical data furnished by or obtained from any person. Only information obtained from private parties is subject to this exemption, “not information generated by the government itself.” Zubeck v. El Paso County Retirement Plan (Colo. Court of Appeals, 1998).
- Library and museum material contributed by private persons if they request anonymity or set other conditions of a gift or loan.
- Addresses and phone numbers of public school children, except to recruiting officers as decided locally.
- Library records disclosing the identity of the user.
- Names, addresses, phone numbers and personal financial information of past or present users of public utilities, public facilities or recreational or cultural services owned and operated by the state or its agencies, institutions or political subdivisions.
- Sexual harassment complaints and investigations. A person making a complaint or a person who is the subject of a complaint may make a record available for public inspection when the record supports the claim that a sexual harassment allegation is false.
- Records of individuals with disability license plates or placards.
As noted in this guide’s section on mandatory exemptions from disclosure, a records custodian is required to withhold a public employee’s personnel file except to the person in interest. However, this exemption is narrowly limited to “home addresses, telephone numbers, (personal) financial information,” and other similar “personal, demographic information” maintained because of the employer-employee relationship. It also includes the “disclosure of an intimate relationship filed in accordance with the policies of the general assembly.” C.R.S. § 24-72-202(4.5). To be classified as closed “personnel file” information, the information must be “of the same general nature” as an employee’s home address, phone number and personal financial information. C.R.S. § 24-72-202(4.5); Daniels v. City of Commerce City (Colo. Court of Appeals, 1999).
Specifically excluded from the definition of closed “personnel files” are applications of past and current employees; employment agreements; any amount paid or benefit provided incident to termination of employment; performance ratings (excluding licensed educators); final sabbatical reports as required by law; and any compensation paid to employees, including expense allowances and benefits.
Records of an employee’s absence from the workplace are public records. Jefferson County Education Association v. Jefferson County School District (Colo. Court of Appeals, 2016).
Evaluation reports of licensed educators are not available for public inspection, but the evaluation report of the chief executive officer of any school district must be open for inspection at reasonable times. C.R.S § 22-9-109(1).
Records of finalists for chief executive officer positions
The names of finalists for chief executive officer positions (college president, city manager, superintendent of schools, etc.) must be made public no later than 14 days prior to the job being filled. “The state or local public body shall name one or more candidates as finalists for the position of chief executive officer.” Prairie Mountain Publishing Co. v. Regents of the University of Colorado (Colo. Court of Appeals, 2021); C.R.S. § 24-6-402(3.5).
Records submitted by the finalist or finalists are available for public inspection except for letters of reference and medical, psychological and sociological data. C.R.S. § 24-72-204(3)(a)(XI)(B). A records custodian must allow public inspection of the demographic data of a candidate who was interviewed by a state or local public body or search committee for an executive position but not named as a finalist. Demographic data means information about a candidate’s race and gender “that has been legally requested and voluntarily provided.” C.R.S. § 24-72-204(3)(a)(XI)(D).
Records of applicants for other employment positions
Records submitted by or on behalf of an applicant or candidate for any employment position (including applicants for executive positions who are not named as finalists) are not available for public inspection. C.R.S. § 24-72-204(3)(a)(XI)(A). However, the applications of past or current employees are open for public inspection and copying, except for letters of reference and medical, psychological, and sociological data. C.R.S. § 24-72-204(3)(a)(XI)(B).
Emails and text messages
The content of an email, text message or other correspondence typically determines whether it is subject to CORA. To be a public record, an email or text message must be made, maintained or kept for use in the performance of public functions or involve the receipt or expenditure of public funds. C.R.S. § 24-72-202(6)(a)(I) and C.R.S. § 24-72-202(7). Strictly private matters discussed in emails or texts between government officials are not “public records” available for public inspection, even if the messages were sent or received using government-issued devices or accounts. But if both public and purely private matters were discussed in the same messages, they should be redacted to exclude the private information prior to being provided to the records requester. Denver Publishing Co. v. Board of County Commissioners of County of Arapahoe (Colo. Supreme Court, 2005).
If a public official uses a private device or account to conduct public business, CORA requests may be made of both the government entity and the official individually. The official is the custodian of any messages concerning public business that were sent or received using a private device or account. The government entity is the custodian of messages sent or received using official devices or accounts.
The definition of public records in CORA specifically includes the “correspondence of elected officials,” unless the message is considered to be work product or is not connected to official duties and does not involve public funds. C.R.S. § 24-72-202(6)(a)(II).
Not subject to disclosure are communications from a constituent to an elected official that clearly imply an expectation of confidentiality. C.R.S. § 24-72-202(6)(a)(II)(C).
CORA defines “work product” not subject to disclosure to mean advisory or deliberative materials assembled for the benefit of elected officials to help them reach a decision. Work product includes notes and memos on background information as well as preliminary drafts of documents that express a decision by an elected official. Elected officials may release, or authorize the release of, any work product prepared for them. C.R.S. § 24-72-202(6.5).
Work product also includes drafts of bills or amendments and research conducted by Legislative Council for a legislator in connection with proposed legislation or amendments. The final product of such research becomes a public record unless the legislator requests that it remain work product. If a research project requested by a member of the General Assembly is not connected to pending or proposed legislation or amendments, the final product becomes a public record. C.R.S. § 24-72-202(6.5)(b).
Work product does not include:
- Final versions of documents expressing an official decision by an elected official; final versions of fiscal or performance audit reports on public entity management or the expenditure of public funds; or final financial reports. C.R.S. § 24-72-202(6.5)(c)(I).
- Materials that would otherwise constitute work product if produced and distributed to members of a public body for their use in a public meeting or identified in the text of a document that expresses a decision. C.R.S. § 24-72-202(6.5)(c)(IV).
- Documents consisting solely of factual information compiled from public sources, including comparisons of existing laws, etc., in other jurisdictions or compilations of existing public information, statistics or data explanations of general areas of law or policy. C.R.S. § 24-72-202(6.5)(d).
For records kept only in “miniaturized or digital form,” CORA requires custodians to adopt a policy regarding the retention, archiving and destruction of those records. However, the statute does not set any parameters for a retention policy. C.R.S. § 24-72-203(1)(b)(I). Each state agency must maintain retention and disposition schedules for agency records that are consistent with administrative and technical procedures established by the state archivist. C.R.S. § 24-80-102.7(2)(III). The public records management statute gives much discretion to the individual public employee who receives or sends an email. The statute excludes electronic mail messages from its definition of “records,” unless the recipient has decided to save them because they relate to a government activity “or because of the value of the official governmental data contained therein.” C.R.S. § 24-80-101(2)(f).
If you have questions about how long a government entity is supposed to retain records such as email messages, ask for a copy of the entity’s records retention schedule or policy. Many government entities have adopted records retention schedules prepared by the Colorado State Archivist.
Common law attorney-client and attorney work product privileges are incorporated into CORA. Communications between attorneys and clients, as well as materials prepared by an attorney in anticipation of litigation, are not subject to inspection. Denver Post Corp. v. University of Colorado (Colo. Court of Appeals. 1987).
Colorado courts have repeatedly held that a government entity cannot, through a unilateral or bilateral agreement, exempt documents from disclosure under CORA. Denver Publishing Co. v. University of Colorado (Colo. Court of Appeals, 1990). “An agreement by a government 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 (Colo. Court of Appeals, 1999). Under these precedents, any provision in a settlement agreement with a public entity that requires confidentiality cannot bar disclosure under CORA; any such provision is void as contrary to the public policy of the state, as codified in CORA.
De-identified election ballots are open for public inspection but subject to specific handling requirements and restrictions on when requests may be made. C.R.S. § 24-72-205.5.
Coroners’ autopsy reports are specifically excluded from CORA’s general medical records exemption and, therefore, are not criminal justice records. C.R.S. § 24-72-204(3)(a)(I). An autopsy report on a homicide victim may be withheld only under the legal procedure specified in CORA for denying access based on “substantial injury to the public interest.” Denver Publishing Co. v. Dreyfus (Colo. Supreme Court, 1974); Freedom Newspapers v. Bowerman (Colo. Court of Appeals, 1987). A coroner must apply to the district court for an order authorizing the withholding of an autopsy report under that standard.
Birth and death records
Birth and death certificates are confidential, but copies are available to those with “a direct and tangible interest.” C.R.S. § 25-2-117(1).
The Colorado Criminal Justice Records Act (CCJRA) does not provide the same broad level of public access to the records of agencies subject to the statute that CORA provides, although it “favors” public disclosure. Freedom Colorado Information, Inc. v. El Paso County Sheriff’s Department (Colo. Supreme Court, 2008). Only a subset of “records of official action” are declared to be open for inspection (unless sealed by court order), as well as certain records including completed internal affairs files and certain body-worn camera footage. Criminal justice agencies have discretion to withhold most other criminal justice records after conducting a balancing test of interests or finding that disclosure would be contrary to a state statute, court rule or court order.
CCJRA request letter template
What is a criminal justice record?
The definition includes books, papers, cards, photos, tapes, recordings and other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency for use in the exercise of functions required or authorized by law or rule. C.R.S. § 24-72-302(4).
Agencies subject to CCJRA
Among entities covered by the law are any court with criminal jurisdiction, any law enforcement agency that investigates or prosecutes crimes, and any agency that supervises or works with those convicted of crimes. The entities include, but are not limited to, certain agencies and authorities of the state and those representing cities, counties, public institutions of higher education, school districts, special districts and judicial districts. C.R.S. § 24-72-302(3).
The definition of “official action” records that must be disclosed refers to an arrest; indictment; charging by information; disposition; pre-trial or post-trial 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. C.R.S. § 24-72-302(7).
“The CCJRA does not grant any criminal justice agency, including a court, any discretion as to whether to disclose a record of official action in its entirety, in part, or not at all.” In re People of the State of Colorado v. Aaron Thompson (Colo. Supreme Court, 2008).
Arrest and criminal records information
Information contained in “official action” records reporting the arrest, indictment, or other formal filing of criminal charges against a person includes: the identity of a criminal justice agency; the date and place that 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 charges brought or offenses alleged against an accused person; and one or more dispositions relating to charges brought against an accused person. C.R.S. § 24-72-302(1).
Investigative records and arrest affidavits
Arrest affidavits and investigative records are not records of official action. They are among the criminal justice records that may be withheld from public inspection if a records custodian determines that disclosure would be “contrary to the public interest.” C.R.S. § 24-72-305(5). This finding is most frequently applied to records while an investigation is ongoing.
“Contrary to the public interest”
In determining whether disclosure of criminal justice records would be “contrary to the public interest,” a records custodian must balance: 1) the public interest to be served in allowing inspection; 2) the agency’s interest in keeping confidential information confidential; 3) privacy interests; 4) the agency’s interest in pursuing ongoing investigations; and 5) other pertinent considerations. Harris v. Denver Post Corp. (Colo. Supreme Court, 2005) and Freedom Colorado Information, Inc. v. El Paso County Sheriff’s Department (Colo. Supreme Court, 2008). The records custodian must articulate the basis for its conclusion that disclosure would be contrary to the public interest, including a discussion of the various factors applied.
Prior to the enactment of Senate Bill 20-217 and the July 2021 effective date of body-worn camera footage provisions in House Bill 21-1250, local law enforcement agencies and the Colorado State Patrol could treat body-worn camera and dashboard camera footage like other criminal justice records. Footage or portions of footage could be withheld or redacted if an agency determined disclosure would be “contrary to the public interest.” C.R.S. § 24-72-305(5).
Under the new amendments mentioned above, all unedited video and audio recordings of incidents “in which there is a complaint of peace officer misconduct … through notice to the law enforcement agency involved in the alleged misconduct” must be released to the public no later than 21 days after a request is made. C.R.S. § 24-31-902(2)(a). An agency can delay the release of video until 45 days from the date of an allegation of misconduct if the video “would substantially interfere with or jeopardize an active or ongoing investigation.” A prosecuting attorney must explain in writing why the delayed release is justified; that statement will have to be released to the public when the video is released. C.R.S. § 24-31-902(2)(b)(III).
If criminal charges have been filed against any party to the incident of alleged officer misconduct, the party may file a constitutional objection to the release of the recording before the 21-day period expires. “The court shall hold a hearing on any objection no later than seven days after it is filed and issue a ruling no later than three days after the hearing.” C.R.S. § 24-31-902(2)(c).
Redactions are allowed if a video “raises substantial privacy concerns” for criminal defendants, victims, witnesses, juveniles or informants. This could include video depicting nudity, a sexual assault, a mental health crisis or a medical emergency. Unredacted footage cannot be released without written permission from the victim or, if the victim died or is incapacitated, the victim’s family. C.R.S. § 24-31-902(2)(b)(II)(A). If a recording depicts a death, it must be provided to the victim’s family, if requested, at least 72 hours before it is made public. C.R.S. § 24-31-902(2)(b)(I).
Open for inspection are records of completed internal affairs investigations (for investigations initiated after Apr. 12, 2019) that examine “the in-uniform or on-duty conduct of a peace officer … related to an incident of alleged misconduct involving a member of the public.” An entire investigation file must be made available upon request, including witness interviews, video and audio recordings, transcripts, documentary evidence, investigative notes and a final departmental decision. However, a records custodian may first provide the requester with a summary of the file. C.R.S. § 24-72-303(4)(a).
Prior to providing access to an internal investigation file, certain information must be redacted while certain other information may be blacked out. Among information that must be removed: personal identifying information such as Social Security numbers, driver’s license numbers and passport numbers; information that identifies confidential informants, witnesses or victims; and a law enforcement officer’s home address, personal phone number and personal email address. C.R.S. § 24-72-303(4)(b).
Records custodians are allowed to withhold: compelled statements made by officers who are the subject of a criminal investigation; videos or photographs that raise substantial privacy concerns; the identity of officers who volunteered information but are not the subject of the internal investigation; specific information that would reveal confidential intelligence information or security procedures; and internal investigation files if there is an ongoing criminal case against the officer who is the subject of the investigation. C.R.S. § 24-72-303(4)(c).
A records requester can ask for a written explanation of the reasons for any redaction, and anyone denied access to information in a completed internal affairs file can file a lawsuit in district court. If a legal challenge is pursued under the law, a judge is to make an independent assessment of whether the records — or any portion of the records — were improperly withheld, without placing weight on the record custodian’s initial decision. C.R.S. § 24-72-303(4)(f).
By Feb. 1, 2022, each district attorney must publicly disclose policies and procedures for law enforcement agencies to follow when an officer’s credibility is called into question. C.R.S. § 16-2.5-502(3). The policies and procedures for these “Brady lists,” named for a 1963 U.S. Supreme Court ruling, must “describe how members of the public can access” a database of peace officers who are subject to credibility disclosure notifications. By 2022, the state’s Peace Officers Standards and Training (POST) board is required to create and maintain the database “in a searchable format to be published on its website.” Funding for the database, however, is “subject to available appropriations.” C.R.S. § 24-31-303(1)(r)(I).
Unlike in CORA, the response time for producing most criminal justice records is not spelled out in the statute. For records of official action, upon request, the records custodian “shall set a date and hour within three working days at which time the record will be available for inspection.” C.R.S. § 24-72-303(3). For certain body-worn camera and dashboard camera footage, disclosure is required within 21 days of a request unless release of the video “would substantially interfere with or jeopardize an active or ongoing investigation.” Release can then be delayed until 45 days from the date of an allegation of misconduct. C.R.S. § 24-31-902(2)(a) and C.R.S. § 24-31-902(2)(b)(III).
The cost for a copy of a criminal justice record cannot exceed 25 cents per standard-sized page or the “actual cost” of providing a copy, printout or photo of a record in a format other than a standard page. To research and retrieve public records, criminal justice agencies may charge “reasonable fees, not to exceed actual costs.” This includes actual staff time spent redacting records prior to disclosure. Many agencies have adopted the hourly charge set forth in CORA. C.R.S. § 24-72-306(1).
Pecuniary gain statement
Custodians are required to deny access to records to anyone who does not sign a statement affirming the records will not be used for “the direct solicitation of business for pecuniary gain.” This prohibition is aimed at anyone who wishes to use the records to solicit customers for a business venture, not the news media. C.R.S. § 24-72-305.5(1).
Anyone requesting a copy of a booking photo must sign a statement affirming that the photo will not be used in a publication or on a website that requires payment to remove or delete the photo. Those who anticipate making multiple requests from an agency may be allowed to submit the required statement once a year. C.R.S. § 24-72-305.5(2).
Challenging a denial
If denied criminal justice records, request a written statement of the grounds for denial, including an explanation of the public interest that needs to be protected. The statement must be provided within 72 hours. C.R.S. § 24-72-305(6).
Also ask if a redacted version of the records could be provided. It may be helpful to cite Freedom Colorado Information, Inc. v. El Paso County Sheriff’s Department (Colo. Supreme Court, 2008). In that ruling, the Colorado Supreme Court wrote that CCJRA “favors disclosure tempered by protection of privacy interests and dangers of adverse consequences at stake in the record’s release.” For records containing private information that cannot be disclosed, the Colorado Supreme Court noted that custodians’ power to redact is “an effective tool to provide the public with as much information as possible, while still protecting privacy interests when deemed necessary.” It also directed custodians to “redact sparingly to promote the CCJRA’s preference for public disclosure.”
As with CORA records, a requester can appeal a denial in district court. The denial decision for non-official action records is reviewed for “abuse of discretion.” Freedom Colorado Information, Inc. v. El Paso County Sheriff’s Department (Colo. Supreme Court, 2008). If the court finds that the withholding of records was “arbitrary or capricious,” the applicant may recover court costs and attorney fees and the custodian may be ordered to personally pay the applicant a penalty of up to $25 for each day access was improperly denied. C.R.S. § 24-72-305(7).
Violations also may punishable as misdemeanors, but criminal sanctions may be sought only by a government prosecutor, not by a private citizen. Effective Mar. 1, 2022, willful and knowing violations of the CCJRA will be a petty offense. C.R.S. § 24-72-309.
Sexual assault and child victims
The name of a victim of sexual assault or alleged sexual assault must be deleted from a criminal justice record prior to its release when the record bears the notation “SEXUAL ASSAULT.” C.R.S. § 24-72-304(4).
The name of a child victim of certain offenses must be deleted from a criminal justice record prior to its release when the record bears the notation “CHILD VICTIM.” The listed offenses include, among others, enticement of a child, internet sexual exploitation, soliciting for child prostitution, pandering of a child, procurement of a child and human trafficking of a minor. C.R.S. § 24-72-304(4.5).
Reports of child abuse or neglect are confidential. Disclosure is not prohibited when a child dies of suspected abuse or neglect and the death becomes a matter of public record and the subject of an arrest and formal criminal charge. C.R.S. § 19-1-307(1)(a) and C.R.S. § 19-1-307(1)(b).
Sealing criminal records
Records of people convicted of certain crimes may be sealed if the person has not been charged with or convicted of an additional crime and all restitution, fees and court costs have been paid. Upon sealing, the defendant and all criminal justice agencies “may properly reply, upon an inquiry into the matter, that public criminal records do not exist with respect to the petitioner or defendant.” C.R.S. § 24-72-703(2)(b).
Any member of the public may petition the court to unseal a file of a criminal conviction upon a showing that the public interest in disclosure now outweighs the defendant’s interest in privacy. C.R.S. § 24-72-703(5)(c).
A court also may seal arrest records, if a person involved requests it, of those who were not officially charged. C.R.S. § 24-72-704. Criminal justice records are sealed when charges are dismissed, a defendant is acquitted on all counts in a case, a defendant completes a diversion program, or a defendant completes a deferred judgment and sentence. C.R.S. § 24-72-705.
For a trial court judge to suppress arrest affidavits and other records in any criminal case, the judge must publicly docket all motions that seek to limit public access. Also, a judge’s written order denying public access to criminal court records must be publicly accessible and must include specific findings that suppressing a court record, or portions of it, serves a “substantial” interest that outweighs the public interest and that no “less restrictive means” are available to protect that interest. Colorado Rule of Criminal Procedure 55.1.
Juvenile Records and Proceedings
Juvenile court hearings
The public can be excluded from juvenile hearings if the court determines it is in the best interest of the juvenile or the community to close them. C.R.S. § 19-1-106(2).
Juvenile court records
Names of juveniles in misdemeanor, custody and abuse cases are not open to the public. C.R.S. § 19-1-304(1)(b.5) and C.R.S. § 19-1-304(1)(b.7); C.R.S. § 19-1-304(2); see also C.R.S. § 24-72-304(4.5) (“Child Victim”).
Also prohibited from public disclosure are names, birth dates and photographs of juveniles who are charged with crimes that would be class 1, 2, 3 or 4 felonies if committed by adults or offenses that “would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult.” Available to the public in such cases are records showing that an arrest took place on a particular date, at a particular place, which criminal justice agency made the arrest and the nature of the charges. C.R.S. § 19-1-304(1)(b.5) and C.R.S. § 19-1-304(1)(b.7).
Other juvenile cases are closed unless the case is transferred to district court where the juvenile will be tried as an adult. C.R.S. § 19-1-304(5).
Division of Youth Services facilities
Certain information about critical incidents at Division of Youth Services facilities must be released after redacting any identifying information, any information concerning security procedures and any information that would jeopardize the safety of the community, youths or staff. C.R.S. § 19-1-304(8).
Each county jail must keep a daily record of confined inmates. The information contained in the record must be available to the public at all reasonable hours. C.R.S. § 17-26-118(2).
The daily record must include the name of each confined inmate; date of entrance; date of birth; race; ethnicity; gender; any criminal charges and the jurisdiction charging each offense; term of sentence, if sentenced; bond amount, if bond has been set; and release date. C.R.S. § 17-26-118(3).
Initiated by the people of Colorado in 1972, the Colorado Open Meetings Law (COML) or Sunshine Law originally applied only to the General Assembly and state agencies. A separate law applied to local government meetings until 1991, when the legislature combined the statutes into one law (retaining some differences between the requirements for state public bodies and those for local public bodies).
The importance of open government meetings is made clear in the law’s first paragraph: “It is declared to be a matter of statewide concern and the policy of this state that the formation of public policy is public business and may not be conducted in secret.” C.R.S. § 24-6-401.
Jurisdictions subject to the COML
The open meetings law covers all boards, committees, commissions, authorities and other advisory, policy-making, rule-making or other formally constituted bodies, as well as any public or private entities that have been delegated governmental decision-making functions by a public body or official. Administrative staff meetings are not subject to the law. C.R.S. § 24-6-402(1).
The law is two-tiered, treating state government and local governments differently in some respects.
State public bodies include the General Assembly, the governing boards of institutions of higher education and other state boards and commissions. C.R.S. § 24-6-402(1)(d)(I). Local public bodies include the boards and commissions of all political subdivisions of the state, including counties, cities, towns, home rule cities, school districts, special districts, metropolitan districts and the Regional Transportation District. C.R.S. § 24-6-402(1)(a)(I).
Charter school governing boards are local public bodies. C.R.S. § 24-6-402(1)(a)(III). Also included in the definition of local public bodies: “members of a board of education, school administration personnel, or a combination thereof who are involved in a meeting with a representative of employees at which a collective bargaining agreement is discussed.” C.R.S. § 24-6-402(1)(a)(II).
Additional rules for board of education meetings are spelled out in a separate statute, C.R.S. § 22-32-108.
What is a “meeting”?
A meeting is defined as any kind of gathering convened to discuss public business whether in person, by telephone, electronically or by other means of communication. Included are discussions via email and text message. C.R.S. § 24-6-402(1)(b). A meeting conducted by telephone conference or virtually (on Zoom or another web conference platform) complies with the open meetings law “so long as the means to access the meeting electronically are made available to the public.” Colorado Attorney General FAQ.
For a meeting to be subject to the Sunshine Law, there must be a demonstrated link between the content of the meeting and some policy-making responsibilities of the public body. Board of County Commissioners of Costilla County v. Costilla Count Conservancy District (Colo. Supreme Court, 2004).
State public bodies must open meetings of two or more members at which public business is discussed or formal action may be taken. C.R.S. § 24-6-402(2)(a). Legislative caucus meetings are subject to open meetings requirements. Cole v. State (Colo. Supreme Court, 1983).
Local public bodies must open meetings of a quorum or three or more members, whichever is fewer, at which public business is discussed or formal action may be taken. C.R.S. § 24-6-402(2)(b).
If school boards adopt a policy allowing members to attend meetings electronically, the board must “have technology in place that ensures that members of the public can hear the comments made by a board member who attends the meeting electronically and that the board member can hear comments made by the public.” C.R.S. § 22-32-108(7)(b)(IV).
Meetings of special district boards may be held by telephone, electronically or in some “virtual place” in addition to physical locations. C.R.S. § 32-1-903(5)(a). A meeting notice must include a link, conference number or other method by which the public can attend the meeting. C.R.S. § 32-1-903(2)(b).
Social gatherings and chance meetings are exempt from the open meetings law, but only if the discussion of public business is not the central purpose. C.R.S. § 24-6-402(2)(e).
“Full and timely” notice is required before meetings at which the adoption of any proposed policy, position, resolution, rule, regulation or formal action occurs or at which a majority or quorum is expected to be in attendance. C.R.S. § 24-6-402(2)(c)(I).
Local public bodies are deemed in compliance with the “full and timely” requirement if they post a notice in a formally designated public place at least 24 hours before a meeting. The posting must include specific agenda information “where possible.” C.R.S. § 24-6-402(2)(c)(I). A local public body also is in compliance if it posts meeting notices online “with specific agenda information if available.” The public body “shall, to the extent feasible, make the notices searchable by type of meeting, date of meeting, time of meeting, agenda contents, and any other category deemed appropriate.” C.R.S. § 24-6-402(2)(c)(III). Notice is sufficient if the items actually considered at the meeting are reasonably related to the subject matter indicated by the notice. Town of Marble v. Darien (Colo. Supreme Court, 2008).
State and local public bodies must maintain “sunshine lists” of people who have asked to be notified in advance of all meetings or meetings where certain topics will be discussed. A request covers a two-year period. C.R.S. § 24-6-402(7). County commissioners do not have to give 24-hour notice or “sunshine list” notification if two or more meet to discuss “day-to-day oversight of property or supervision of employees.” C.R.S. § 24-6-402(2)(f) and C.R.S. § 24-6-402(7).
A precise agenda is not required for General Assembly committee meetings because of their “unique nature and pressures.” Such a requirement would “unduly interfere with the legislative process.” Benson v. McCormick (Colo. Supreme Court, 1978).
Members of boards and commissions risk violating the open meetings law when three or more (for a local public body) use email or text messaging to discuss public business, either in a single transmission or in succession. Such electronic conversations are inherently closed because there may be no way to provide advance notice and allow the public to “attend” and observe the meeting. (The messages, however, may be subject to disclosure under the Colorado Open Records Act.)
Two members of a local board (unless two constitutes a quorum) may email each other about public business with no concerns. The messaging becomes a “public meeting” if one of those board members forwards the email to a third member.
Also problematic: Two members of a board texting or emailing each other during a public meeting about a matter being discussed in that meeting. Such discussions are supposed to occur in public.
Elected officials may exchange emails about scheduling and their availability, and other emails that do not concern the “merits or substance” of pending legislation or public business, without worrying about violating the open meetings law. They may also forward information, pose a question “for later discussion by the public body” and respond to inquiries from individuals who are not members of the public body. Merits or substance is defined as “any discussion, debate, or exchange of ideas, either generally or specifically, related to the essence of any public policy proposition, specific proposal, or any other matter being considered by the governing entity.” C.R.S. § 24-6-402(2)(d)(III).
An exception for Colorado Mountain College allows the board of trustees to make decisions electronically under certain circumstances because the trustees serve a large geographic area that is often difficult to travel in winter. C.R.S. § 23-71-119(2).
Minutes and electronic recordings
For state public bodies, minutes of meetings must be taken and “promptly recorded.” The minutes are open for public inspection. C.R.S. § 24-6-402(2)(d)(I).
Local public bodies must keep and promptly record minutes of meetings where the adoption of any policy or other formal action occurs or could occur, and the minutes are open for public inspection. C.R.S. § 24-6-402(2)(d)(II). Workshops or committee meetings do not necessarily require minutes.
The minutes of a school board meeting at which an executive session is held must indicate each topic of the closed-door discussion and the amount of time it was discussed. The minutes must be posted on the board’s website no later than 10 business days after the minutes are approved by the board. C.R.S. § 22-32-108(5)(d).
Public bodies must continue to electronically record open meetings if they started doing so on or after Aug. 8, 2001. C.R.S. § 24-6-402(2)(d.5). School boards must make a recording of each regular and special meeting “at which votes are taken and recorded and shall make the recording available to the public. Recordings must be kept for at least 90 days. C.R.S. § 22-32-108(5)(b) and C.R.S. § 22-32-108(5) (c). Executive sessions must be electronically recorded, except for portions that constitute privileged attorney-client communications if the government attorney so attests before the recording device is turned off or in a signed statement. Executive session recordings must be retained for at least 90 days and are not open for public inspection unless the public body consents or a court orders disclosure. C.R.S. § 24-6-402(2)(d.5) and C.R.S. § 22-32-108(5)(e).
Closed-door sessions are permitted during regular or special meetings only if an open meetings law exemption applies. The “particular matter” to be discussed must be announced to the public with as much specificity as possible without compromising the reason for the executive session. The legal basis (statutory provision) for the executive session must be publicly announced as well, prior to the public body voting in public to go into executive session.
State public bodies can go into executive session only after two-thirds of the entire membership of the body vote in favor. Local public bodies can go into executive session only after two-thirds of the quorum present vote in favor. C.R.S. § 24-6-402(3) and C.R.S. § 24-6-402(4).
Announcing the “particular matter” with specificity serves three interrelated purposes: 1) It provides the public with “specific” information as to what their public officials are discussing behind closed doors; 2) It creates a more effective mechanism for policing whether public bodies have complied with their obligation to vote on whether to discuss the specific topics outside of public view; and 3) It helps public officials avoid straying into topics that are not authorized for executive session discussions.
“The Town’s desire to limit its exposure to a possible legal action by (the acting town manager) did not, in our view, justify negating the public’s right to know the subject of what its officials would be discussing in secret.” Guy v. Whitsitt (Colo. Court of Appeals, 2020).
Executive sessions are for discussions and deliberations on authorized topics, not for making decisions. The open meetings law states: “No adoption of any proposed policy, position, resolution, rule, regulation, or formal action (except the approval of executive session minutes) shall occur at any executive session that is not open to the public.” C.R.S. § 24-6-402(3)(a) and C.R.S. § 24-6-402(4). Decision-making, even informally, is not allowed behind closed doors. Hanover School District No. 28 v. Barbour (Colo. Supreme Court, 2007).
Authorized executive session topics
- Property transactions. State public bodies may discuss the purchase or sale of property at competitive bidding in an executive session if premature disclosure would give an unfair competitive or bargaining advantage. A donor of property to a state university or college may request that the gift be discussed in an executive session. Local public bodies may discuss the purchase, acquisition, lease, transfer or sale of any real, personal or other property interest in an executive session. A closed-door session may not be held to conceal the fact that a member has a personal interest in the transaction.
- Specialized details of security arrangements or investigations.
- Conferences with an attorney to receive advice on specific legal questions. The mere presence or participation of an attorney at an executive session is not sufficient to satisfy the requirements of the statute. Discussion exclusively among members of the public body of the legal advice they’ve received is also not covered by this exemption.
- Negotiation strategy. State public bodies may use executive sessions to determine positions on matters that may be subject to negotiations with employees or employee organizations, to develop strategies or to receive reports and instruct negotiators. Local public bodies may use executive sessions to determine positions on matters that may be subject to negotiations, to develop strategies and instruct negotiators. However, school boards must discuss and negotiate collective bargaining agreements in open meetings.
- Personnel matters. State public bodies must open meetings unless the individual being discussed requests closure. Local public bodies may close such a meeting unless the employee(s) involved requests an open meeting. Under the Teacher Employment, Compensation and Dismissal Act, a school board must hold a teacher’s hearing in public unless an executive session is requested. Higher education boards are authorized to discuss personnel matters in executive session if the subject of the discussion requests it. The personnel matters exemption may not be invoked to discuss any member of a state or local public body, any elected official or the appointment of a person to fill a board vacancy.
- Matters required to be kept confidential by federal or state law or rules. Local public bodies must announce the particular state or federal statutory provision that requires a closed-door discussion. The exemption for state public bodies includes matters that must be kept confidential in accordance with any joint rule of the Senate and House pertaining to lobbying practices.
- Local school boards may meet in executive session to discuss individual students if disclosure would adversely affect the person(s) involved.
- Local public bodies may meet in executive session to discuss any documents protected by the mandatory nondisclosure provisions of the Colorado Open Records Act.
- The Colorado Parole Board may meet in executive session to discuss individuals, but votes must be in public.
- The University of Colorado hospital board may hold closed sessions to talk about patient care programs.
- Higher education governing boards may meet in executive session to discuss honorary degrees and the naming of buildings. Any decision to actually issue honorary degrees or name buildings must take place in a public meeting.
- Boards of nonprofit technology transfer corporations created by state universities may meet in executive session to discuss matters concerning trade secrets, privileged information and confidential commercial information furnished by or obtained from any person.
The open meetings law specifically prohibits any state or local public body from using secret ballots to adopt “any proposed policy, position, resolution, rule, or regulation” or to take “formal action.” Public bodies, however, may use secret ballots to choose their own leadership. C.R.S. § 24-6-402(2)(d)(IV). School boards may use secret ballots to elect the board’s president and vice president. C.R.S. § 22-32-108(6).
The open meetings law does not address whether the public should be given an opportunity to comment on issues during meetings of a public body. Boards, commissions and councils typically set their own ground rules for letting the public speak during designated portions of meetings. The rules cannot be operated in a discriminatory or viewpoint-restricted way. Governments can enforce reasonable restrictions, applied evenly to speakers, such as limiting the time allowed per speaker and removing a speaker who causes a disturbance. Wright v. Anthony (U.S. Court of Appeals, Eighth Circuit, 1984). Kirkland v. Luken (U.S. District Court, S.D. Ohio, 2008).
Challenging a violation
“Any person” denied rights or threatened with the denial of rights under the open meetings law has legal standing to challenge a violation. Thus, the party challenging a closure or another alleged violation need not be a resident or a direct constituent of the public body involved. If an applicant prevails, the court is required to award him or her costs and reasonable attorney fees. If the applicant does not prevail, the court shall award costs and fees to the public body only if it finds that the lawsuit was frivolous, vexatious or groundless. C.R.S. § 24-6-402(9).
The open meetings law does not provide for fines or penalties, but state courts are authorized to issue injunctions if violations are found. A court may invalidate any decisions made during an illegally held meeting. C.R.S. § 24-6-402(8). However, an entity’s unintentional failure to provide advance notice to people on a “sunshine list” will not nullify actions taken at an otherwise properly noticed meeting. C.R.S. § 24-6-402(7).
Relevant portions of an executive session recording must be made available for public inspection if a district court determines, based on an in camera review, that a public body held a closed-door discussion of matters not authorized by the open meetings law or that it adopted a proposed policy, position, resolution, rule or regulation or took formal action in an executive session. C.R.S. § 24-6-402(2)(d.5)(I)(C), C.R.S. § 24-6-402(2)(d.5)(I)(D), and C.R.S. § 24-6-402(2)(d.5)(II)(C), C.R.S. § 24-6-402(2)(d.5)(II)(D) and C.R.S. § 24-72-204(5.5).
Common Sunshine Law violations
- Discussing public business via email or text message amongst a quorum or three or more members (of a local public body).
- Conducting a series of fewer-than-a-quorum meetings, whether in person or electronically, to share views on a particular matter of public business.
- Failing to follow proper procedures for calling a closed-door session, such as failing to announce the subject matter with the required specificity. In those cases, the recording of the closed-door meeting is NOT an executive session recording, but a public record (the minutes of an improperly closed public meeting).
- Discussing a topic in executive session that is not authorized by the open meetings law.
- Making decisions in executive sessions; using a public meeting to “rubber-stamp” a decision made behind closed doors.
- Voting by secret ballot to fill a board vacancy.
Reporter’s Shield Law
A newsperson cannot be compelled to disclose any information received while researching or preparing a story, unless the newsperson personally observed a crime or the information sought is essential to a substantial issue in a court case, the information cannot reasonably be obtained by any other reasonable means and the litigant’s need for the information outweighs the First Amendment rights of the reporter and his/her audience in the free flow of information.
“Newsperson” means any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media. C.R.S. § 24-72.5-103, C.R.S. § 24-72.5-104 and C.R.S. 13-90-119.
Reporter’s Privilege Compendium, compiled by the Reporters Committee for Freedom of the Press, has information on the reporter’s privilege by state.
Cameras in the courtroom
A judge may authorize the use of cameras and audio and/or video recording equipment in the courtroom for any session that is open to the public. (The only pre-trial proceedings in criminal cases applicable are advisements and arraignments.) Limitations include: no photographing of jury voir dire or in camera hearings and no close-ups of bench conferences, communications between counsel and client or between co-counsel or members of the jury. A judge may restrict or limit coverage as necessary. The rule limits coverage to a pool of one video camera and one still camera at a time.
A request must be submitted to the judge at least one day before coverage is to begin with copies given to counsel for each party involved. The request should include the name, case number, date and time of proceeding, the type of coverage requested and a description of the pooling arrangements, if necessary.
The Colorado Judicial Branch has separate policies for public access to court records and the branch’s administrative records.
Chief Justice Directive 05-01, amended in 2016, sets forth rules for public access to records on file in court clerks’ offices in Colorado.
Chief Justice Directive 06-01, amended in 2021, sets charges for copies and document research and redaction for court records.
The case file retrieval fee “shall be waived for litigants, counsel of record, victims, witnesses, and the media if the request concerns a case file located onsite.” If research, review or redaction is required to provide requested records, the court may assess a fee of $30 per hour after the first hour.
Rule 55.1, effective May 2021, requires criminal courts to publicly docket motions seeking to limit public access to criminal court files and any hearings convened to consider such motions. A judge’s written order justifying the suppression of criminal court records must be made public. A judge must show that making the records inaccessible serves a “substantial” interest that outweighs the public interest and that no “less restrictive means” are available to protect that interest.
Open Courts Compendium, from the Reporters Committee for Freedom of the Press, explains multiple aspects of access to court records and proceedings in Colorado.
Colorado Supreme Court Rule, Chapter 38, Rule 2 (also known as P.A.I.R.R. Rule 2), amended in 2018, sets rules of access to Colorado Judicial Branch administrative records. The rules differ from the Colorado Open Records Act in some respects. For example, internal investigative files on judicial branch employees are not subject to public inspection, except for the outcome of an investigation.
Administrative records fee policy and request form. If research, review or redaction is required to provide requested records, the judicial branch may assess a fee of $30 per hour after the first hour.
Colorado Independent Ethics Commission
The constitutionally created state commission that investigates allegations of ethical misconduct involving public officials has its own public records rule and is not subject to the Colorado Open Records Act. Because the commission is housed in the judicial branch, which is not a state agency, it is falls outside the scope of the Colorado Open Meetings Law. Dunafon v. Krupa (Colo. Court of Appeals, 2020)
FOIA Wiki, provided by the Reporters Committee for Freedom of the Press, is a free and collaborative resource on the U.S. Freedom of Information Act.
FOIA and Finding Data, provided by the Society of Professional Journalists.
FOIA Tips and Tricks to Make You a Transparency Master, provided by MuckRock.
Sample FOIA request letters, provided by the National Freedom of Information Coalition.
Government Attic, electronic copies of thousands of federal government documents obtained under FOIA.
FOIA.gov, reports and data on Freedom of Information Act activities for federal agencies.