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

Statute text

(1) (a) All public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise provided by law, but the official custodian of any public records may make such rules with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or the custodian's office.

(b) Where public records are kept only in miniaturized or digital form, whether on magnetic or optical disks, tapes, microfilm, microfiche, or otherwise, the official custodian shall:

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

(II) Take such measures as are necessary to assist the public in locating any specific public records sought and to ensure public access to the public records without unreasonable delay or unreasonable cost. Such measures may include, without limitation, the availability of viewing stations for public records kept on microfiche; the provision of portable disk copies of computer files; or direct electronic access via online bulletin boards or other means.

(2) (a) If the public records requested are not in the custody or control of the person to whom application is made, such person shall forthwith notify the applicant of this fact, in writing if requested by the applicant. In such notification, the person shall state in detail to the best of the person's knowledge and belief the reason for the absence of the records from the person's custody or control, the location of the records, and what person then has custody or control of the records.

(b) If an official custodian has custody of correspondence sent by or received by an elected official, the official custodian shall consult with the elected official prior to allowing inspection of the correspondence for the purpose of determining whether the correspondence is a public record.

(3) (a) If the public records requested are in the custody and control of the person to whom application is made but are in active use, in storage, or otherwise not readily available at the time an applicant asks to examine them, the custodian shall forthwith notify the applicant of this fact, in writing if requested by the applicant. If requested by the applicant, the custodian shall set a date and hour at which time the records will be available for inspection.

(b) The date and hour set for the inspection of records not readily available at the time of the request shall be within a reasonable time after the request. As used in this subsection (3), a "reasonable time" shall be presumed to be three working days or less. Such period may be extended if extenuating circumstances exist. However, such period of extension shall not exceed seven working days. A finding that extenuating circumstances exist shall be made in writing by the custodian and shall be provided to the person making the request within the three-day period. Extenuating circumstances shall apply only when:

(I) A broadly stated request is made that encompasses all or substantially all of a large category of records and the request is without sufficient specificity to allow the custodian reasonably to prepare or gather the records within the three-day period; or

(II) A broadly stated request is made that encompasses all or substantially all of a large category of records and the agency is unable to prepare or gather the records within the three-day period because:

(A) The agency needs to devote all or substantially all of its resources to meeting an impending deadline or period of peak demand that is either unique or not predicted to recur more frequently than once a month; or

(B) In the case of the general assembly or its staff or service agencies, the general assembly is in session; or

(III) A request involves such a large volume of records that the custodian cannot reasonably prepare or gather the records within the three-day period without substantially interfering with the custodian's obligation to perform his or her other public service responsibilities.

(c) In no event can extenuating circumstances apply to a request that relates to a single, specifically identified document.

(3.5) (a) Except as otherwise required by subsection (3.5)(b) of this section:

(I) If a public record is stored in a digital format that is neither searchable nor sortable, the custodian shall provide a copy of the public record in a digital format.

(II) If a public record is stored in a digital format that is searchable but not sortable, the custodian shall provide a copy of the public record in a searchable format.

(III) If a public record is stored in a digital format that is sortable, the custodian shall provide a copy of the public record in a sortable format.

(b) A custodian is not required to produce a public record in a searchable or sortable format in accordance with subsection (3.5)(a) of this section if:

(I) Producing the record in the requested format would violate the terms of any copyright or licensing agreement between the custodian and a third party or result in the release of a third party's proprietary information; or

(II) After making reasonable inquiries, it is not technologically or practically feasible to permanently remove information that the custodian is required or allowed to withhold within the requested format, it is not technologically or practically feasible to provide a copy of the record in a searchable or sortable format, or if the custodian would be required to purchase software or create additional programming or functionality in its existing software to remove the information.

(c) If a custodian is not able to comply with a request to produce a public record that is subject to disclosure in a requested format specified in subsection (3.5)(a) of this section, the custodian shall produce the record in an alternate format or issue a denial under section 24-72-204 and shall provide a written declaration attesting to the reasons the custodian is not able to produce the record in the requested format. If a court subsequently rules the custodian should have provided the record in the requested format, attorney fees may be awarded only if the custodian's action was arbitrary or capricious.

(d) Altering an existing public record, or excising fields of information pursuant to this subsection (3.5) to remove information that the custodian is either required or permitted to withhold, does not constitute the creation of a new public record.

(e) Nothing in this subsection (3.5) relieves or mitigates the obligations of a custodian to produce a public record in a format accessible to individuals with disabilities in accordance with Title II of the federal "Americans with Disabilities Act of 1990", 42 U.S.C. sec. 12131 et. seq., and other federal or state laws.

(4) Nothing in this article shall preclude the state or any of its agencies, institutions, or political subdivisions from obtaining and enforcing trademark or copyright protection for any public record, and the state and its agencies, institutions, and political subdivisions are hereby specifically authorized to obtain and enforce such protection in accordance with the applicable federal law; except that this authorization shall not restrict public access to or fair use of copyrighted materials and shall not apply to writings which are merely lists or other compilations.

History

Source: L. 68: p. 202, 3. C.R.S. 1963: 113-2-3. L. 92: (4) added, p. 1104, 3, effective July 1. L. 96: (1) to (3) amended, p. 1483, 5, effective June 1. L. 99: IP(3)(b) amended and (3)(b)(III) added, p. 207, 1, effective March 31. L. 2017: (3.5) added, (SB 17-040), ch. 286, p. 1582, 1, effective August 9. L. 2018: IP(3.5)(b) and (3.5)(c) amended, (HB 18-1375), ch. 274, p. 1711, 53, effective May 29.

Annotations

Cross references: For the legislative declaration contained in the 1996 act amending subsections (1) to (3), see section 1 of chapter 271, Session Laws of Colorado 1996.

Annotations

 

ANNOTATION

Annotations

Law reviews. For article, "E-mail, Open Meetings, and Public Records", see 25 Colo. Law. 99 (Oct. 1996). For article, "Privacy Rights and Public Records in Colorado: Hiding in Plain Sight", see 33 Colo. Law. 111 (Oct. 2004). For article, "Copyright, Privacy, and Open Records Act Website Policies for Governmental Entities", see 41 Colo. Law. 41 (Jan. 2012).

First amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. This is true where the information sought is personal in nature and is to be published primarily for commercial purposes. Eugene Cervi & Co. v. Russell, 184 Colo. 282, 519 P.2d 1189 (1974).

Court considers and weighs public interest in determining disclosure question. The limiting language making certain of the open records provisions applicable except as "otherwise provided by law" is a reference to the rules of civil procedure and expresses the legislative intent that a court should consider and weigh whether disclosure would be contrary to the public interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Statutory scheme strikes a balance between the statutory right of the public to inspect and copy public records and the administrative burdens that may be placed upon government agencies in responding to open records requests. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994); Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d 308 (Colo. App. 2004).

By requiring specificity in records requests, spelling out reasonable procedures, and providing that records requests will not take priority over the entity's previously scheduled work activities, the entity's policy is consistent with the statutory authorization for "reasonably necessary" rules and the jurisprudential recognition of the need for balance between the public's right to inspect public records and the administrative burdens that may be placed on government agencies responding to such requests. Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d 308 (Colo. App. 2004).

Regulations that reasonably restrict the manner of access and do not deny access to public records do not violate the public records law. Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. App. 1991).

Regulations which limit access to records to minimize the dangers of record alteration and obliteration are reasonably necessary within the meaning of subsection (1). Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. App. 1991).

A computer print-out provides the reader with the same information as would a visual examination of the same information on a computer screen. Oral communications and microfiche copies are also readily accessible and meet the statutory requirements concerning reasonable accessibility. Tax Data Corp. v. Hutt, 826 P.2d 353 (Colo. App. 1991).

Nominal research and retrieval fee permitted under subsection (1)(a). Although the opens records law does not expressly require the payment of a fee to exercise the right of inspection, legislative history reflects that this omission was intentional. Black v. S.W. Water Conserv. Dist., 74 P.3d 462 (Colo. App. 2003).

Charging an advance deposit in a reasonable amount is not in violation of CORA. A custodian may charge a reasonable fee for retrieving and researching records, including the time it takes to identify and segregate records that need not be disclosed. Mountain-Plains Inv. v. Parker Jordan Metro. Dist., 2013 COA 123, 312 P.3d 260.

Subsection (2) does not impose an unreasonable burden on a state agency. There is no obligation to investigate outside the department for the requested documents or to undertake a special search to locate requested documents. The agency needs only to notify the requesting party that it has no knowledge of the location of requested records, or to refer such party to the agency it believes might maintain the records. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994).

Construction of open records law. Open records law is a general act and will not be interpreted to repeal a conflicting special provision unless the intent to do so is clear and unmistakable. Uberoi v. Univ. of Colo., 686 P.2d 785 (Colo. 1984) (decided prior to 1985 enactment of 24-72-202 (1.5)).

The courts do not have an implied duty to manipulate computer generated data under the public records act in order to create a new document solely for purposes of disclosure. Office of State Court Adm'r v. Background Info. Servs., Inc., 994 P.2d 420 (Colo. 1999).

Access to court-maintained files involves a fragile balance between the interests of the public and the protection of individuals who are parties to cases in court. Office of State Court Adm'r v. Background Info. Servs., Inc., 994 P.2d 420 (Colo. 1999).

No implied duty to delete exempt information. The fact that data which is exempt under the open records law could be altered such that it would qualify as group scholastic achievement data not subject to an exemption does not create a duty on the part of the school district to do such alteration. The exceptions to the open records law are unambiguous and do not support a judicial interpretation of an implied duty. Sargent Sch. Dist. v. Western Servs., 751 P.2d 56 (Colo. 1988).

Records not available to the requesting party at the time of the request because of his incarceration, must be open to his inspection at a reasonable time when he is no longer confined. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994).

Was reasonable for court to conclude that a request for written approval or certification of an institution as an accredited law school was not an existing document or "writing". Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994).

Vital statistics records held confidential and exempt from right to inspect. Eugene Cervi & Co. v. Russell, 31 Colo. App. 525, 506 P.2d 748 (1972), aff'd, 184 Colo. 282, 519 P.2d 1189 (1974).

Claim that transportation contracts entered into between city department of public utilities and railroad were confidential commercial matters did not preclude disclosure of contracts under open records act, where governmental body is involved. Freedom News v. Denver & Rio Grande R. Co., 731 P.2d 740 (Colo. App. 1986).

Federal law, i.e. the Staggers Act of 1980, which provides that certain information in contracts filed with Interstate Commerce Commission is available only where requested by certain specified parties does not prohibit public disclosure under open records act of transportation contracts entered into between city and railroad. Freedom News v. Denver & Rio Grande R. Co., 731 P.2d 740 (Colo. App. 1986).

Privileges for attorney-client communication and attorney work product established by common law, though incorporated into open records law, are waived by any voluntary disclosure by privilege holder to a third person. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).

Class record sheet qualifies as "scholastic achievement data on individual persons". Because the class record sheets with the "Comprehensive Test of Basic Skills" test results provide individual student scores which directly correspond to individual student names, these sheets are protected under the open records law as "scholastic achievement data on individual persons". Sargent Sch. Dist. v. Western Servs., 751 P.2d 56 (Colo. 1988).

Trial court was presented with insufficient evidence to conclude that records were not "public records". The court's decision was based only on evidence demonstrating that the records were not maintained by the department of corrections; no evidence was presented concerning the records of any other agency. Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994).

The names of transitional employment program participants and the amounts paid to them were not exempt from disclosure under the Colorado Open Records Act. Releasing the total amount paid to employees under the program is inconsistent with the plain language of the statute. Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998).

Records custodian cannot be sanctioned for failure to comply with time limits in subsection (3)(b) in situations where compliance with a request within those time limits is found to be a physical impossibility. Citizens Progressive Alliance v. S.W. Water Conservation Dist., 97 P.3d 308 (Colo. App. 2004).