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24-72-202. Definitions.

Statute text

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;

(c) Communications sent via electronic mail.

(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, a disclosure of an intimate relationship filed in accordance with the policies of the general assembly, 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, 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;

(C) A communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or that is communicated for the purpose of requesting that the elected official render assistance or information relating to a personal and private matter that is not publicly known affecting the constituent 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, including medical records, relating to designated beneficiaries of and individual contributors to an individual trust account or savings account under the savings programs established pursuant to part 3 of article 3.1 of title 23, C.R.S., including any records that reveal personally identifiable information about such individuals;

(C) Trade secrets and proprietary information regarding software, including programs 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 insurance 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;

(C) Proprietary fundraising information of an institution or an institutionally related 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 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);

(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); or

(XIII) The information provided to the state medical marijuana licensing authority pursuant to section 25-1.5-106 (7)(e), C.R.S.

(XIV) Pursuant to the "Colorado Partnership for Quality Jobs and Services Act", part 11 of article 50 of this title 24, records created in compliance with the requirements of a state employee partnership agreement as specified in section 24-50-1111 (3)(d) and documents created in connection with the dispute resolution process for an employee partnership agreement as specified in section 24-50-1113 (2)(e).

(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:

(I) All documents relating to the drafting of bills or amendments, pursuant to section 2-3-304 (1) or 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.;

(II) All documents prepared or assembled by a member of the general assembly relating to the drafting of bills or amendments;

(III) All documents prepared by or submitted to any legislative staff in connection with assisting a member of the general assembly in responding to the correspondence from a constituent when such correspondence is not a public record of an elected official as provided for in subsection (6) of this section;

(IV) All documents and 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.

(c) "Work product" does not include:

(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;

(C) Compilations or explanations of general areas or bodies of law, ordinances, rules, or 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 independent congressional redistricting commission and the independent legislative redistricting commission are considered elected officials.

History

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. L. 2009: (6)(a)(II)(C) and (6.5)(b) amended, (HB 09-1348), ch. 358, p. 1864, 3, effective June 1. L. 2010: (6)(b)(XI) and (6)(b)(XII) amended and (6)(b)(XIII) added, (HB 10-1284), ch. 355, p. 1687, 13, effective July 1. L. 2011: (6)(b)(X) amended, (SB 11-062), ch. 128, p. 435, 18, effective April 22; (6)(b)(XIII) amended, (HB 11-1043), ch. 266, p. 1211, 18, effective July 1. L. 2015: (6)(b)(III)(B) amended, (HB 15-1359), ch. 269, p. 1055, 15, effective June 3. L. 2019: (4.5) amended, (SB 19-244), ch. 243, p. 2377, 4, effective May 20. L. 2020: (6)(b)(XIV) added, (HB 20-1153), ch. 109, p. 440, 5, effective June 16; (8) amended, (SB 20-186), ch. 272, p. 1329, 16, effective July 11.

Annotations

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

Annotations

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.

(4) For the legislative declaration in HB 20-1153, see section 1 of chapter 109, Session Laws of Colorado 2020.

Annotations

 

ANNOTATION

Annotations

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

Records of the supreme court regulation counsel and office of attorney regulation counsel are not public records. Supreme court regulation counsel and the office of attorney regulation counsel are part of the judicial branch of state government. Because the judicial branch is not the state or an agency of the state for purposes of the open records act, judicial records, including regulation counsel records, are not public records as defined in subsection (6). Gleason v. Judicial Watch, Inc., 2012 COA 76, 292 P.3d 1044.

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 Publ'g 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).

A record that documents a teacher's request for sick leave is not part of the teacher's personnel file. Such records are not of the same general nature as a teacher's personal demographic information and they should not be kept confidential as personnel files pursuant to the first sentence in subsection (4.5) because a teacher's absence is directly related to the teacher's job as a public employee. The fact of a teacher's absence from the workplace is neither personal nor demographic. Jefferson County Educ. v. Jefferson Sch. Dist., 2016 COA 10, 378 P.3d 835.

A record that documents a teacher's request for sick leave pertains to "any compensation" and the benefit of sick leave. Therefore, these records fall under the second sentence of subsection (4.5), and the school district and the custodian of the records are obligated to release them when requested pursuant to this act. Jefferson County Educ. v. Jefferson Sch. Dist., 2016 COA 10, 378 P.3d 835.

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).

Portions of draft legislation prepared by the office of legislative legal services and excerpted in a memorandum prepared by a private citizen were work product and were not public records subject to disclosure. Draft legislation prepared by the office of legislative legal services and never introduced in the general assembly is work product under subsection (6.5)(b) and 2-3-505 (2)(b), does not automatically lose its work product status when incorporated into a memorandum that is otherwise a public record, and may be redacted from the memorandum when the memorandum is produced. Ritter v. Jones, 207 P.3d 954 (Colo. App. 2009).

And the work product disclosure exemption was not waived when the legislator who had requested the draft legislation voluntarily disclosed it only to persons with whom the legislator had a common legal interest. To hold otherwise would contravene the purpose of the general assembly's work product exemption by limiting the legislators' ability to consult in confidence regarding draft legislation with private parties possessing expertise in a particular area. Ritter v. Jones, 207 P.3d 954 (Colo. App. 2009).

Draft emails prepared for an unelected appointee are not the type of work product excluded from definition of "public records". Only work product that is in the correspondence of elected officials or prepared for elected officials is excluded from the definition of public records. Although the draft emails prepared for an appointed official were work product, they were not prepared for an elected official and therefore were subject to inspection as public records. Bjornsen v. Bd. of County Comm'rs, 2019 COA 59, __ P.3d __.

Where custodian redacted work product from emails between elected officials, the district court should have considered whether the redactions were also proper under the open meetings law, 24-6-402. Bjornsen v. Bd. of County Comm'rs, 2019 COA 59, __ P.3d __.

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).

Any record not received, possessed, or maintained by a metropolitan district, through a custodian, is not a public record. Records concerning the project at issue in the CORA request are required to be produced if those records were sent to or received by the district, including those received by a third party. Mountain-Plains Inv. v. Parker Jordan Metro. Dist., 2013 COA 123, 312 P.3d 260.

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

Certain documents prepared by city council in connection with performance evaluation of city administrator constituted "work product" and are therefore exempt from disclosure requirements. Because preliminary review forms prepared by individual city council members, and spreadsheet based on those forms, were advisory in nature and did not express a final decision by any council member, city was not required to disclose them as public records when requested by local newspaper. Ft. Morgan v. E. Colo. Publ'g Co., 240 P.3d 481 (Colo. App. 2010).

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).

Billing statements generated by a phone company and kept in the possession of the governor are not public records when they logged calls made from a personal phone that the governor used to discuss both public and private business and the parties stipulated that the governor kept and used the statements only for payment of the bills, did not obtain any reimbursement from the state for payment of the bills, and did not turn the bills over to any other state agency or official for their use. Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011).