Previous  Next

24-72-304. Inspection of criminal justice records.

Statute text

(1) Except for records of official actions which must be maintained and released pursuant to this part 3, all criminal justice records, at the discretion of the official custodian, may be open for inspection by any person at reasonable times, except as otherwise provided by law, and the official custodian of any such records may make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.

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

(3) If the requested records are not in the custody and control of the criminal justice agency to which the request is directed but are in the custody and control of a central repository for criminal justice records pursuant to law, the criminal justice agency to which the request is directed shall forward the request to the central repository. If such a request is to be forwarded to the central repository, the criminal justice agency receiving the request shall do so forthwith and shall so advise the applicant forthwith. The central repository shall forthwith reply directly to the applicant.

(4) (a) The name and any other information that would identify any victim of sexual assault or of alleged sexual assault or attempted sexual assault or alleged attempted sexual assault shall be deleted from any criminal justice record prior to the release of such record to any individual or agency other than a criminal justice agency when such record bears the notation "SEXUAL ASSAULT" prescribed by this subsection (4).

(b) (I) A criminal justice agency or custodian of criminal justice records shall make the notation "SEXUAL ASSAULT" on any record of official action and on the file containing such record when the official action is related to the commission or the alleged commission of any of the following offenses:

(A) Sexual assault under section 18-3-402, C.R.S., or sexual assault in the first degree under section 18-3-402, C.R.S., as it existed prior to July 1, 2000;

(B) Sexual assault in the second degree under section 18-3-403, C.R.S., as it existed prior to July 1, 2000;

(C) Unlawful sexual contact under section 18-3-404, C.R.S., or sexual assault in the third degree under section 18-3-404, C.R.S., as it existed prior to July 1, 2000;

(D) Sexual assault on a child under section 18-3-405, C.R.S.;

(E) Sexual assault on a child by one in a position of trust under section 18-3-405.3, C.R.S.;

(F) Sexual assault on a client by a psychotherapist under section 18-3-405.5, C.R.S.;

(G) Incest under section 18-6-301, C.R.S.;

(H) Aggravated incest under section 18-6-302, C.R.S.; or

(I) An attempt to commit any of the offenses listed in sub-subparagraphs (A) to (H) of this subparagraph (I).

(II) The notation required pursuant to subparagraph (I) of this paragraph (b) shall be made when:

(A) Any record or file or both of official action is prepared relating to the commission or alleged commission of an offense enumerated in subparagraph (I) of this paragraph (b); or

(B) The name of any victim of the commission or alleged commission of any offense enumerated in subparagraph (I) of this paragraph (b) for which official action was taken appears on the criminal information or indictment.

(c) A criminal justice agency or custodian of criminal justice records shall make the notation "SEXUAL ASSAULT" on any record of official action and on the file containing such record when:

(I) Any employee of the court, officer of the court, or judicial officer notifies such agency or custodian of the name of any victim of the commission or alleged commission of any offense enumerated in subparagraph (I) of paragraph (b) of this subsection (4) when such victim's name is disclosed to or obtained by such employee or officer during the course of proceedings related to such official action; or

(II) Such record or file contains the name of a victim of the commission or alleged commission of any such offense and the victim requests the custodian of criminal justice records to make such a notation.

(d) The provisions of this subsection (4) shall not apply to the sharing of information by a state institution of higher education police department to authorized university administrators pursuant to section 23-5-141, C.R.S.

(4.5) (a) The name and any other information that would identify any child victim of offenses, alleged offenses, attempted offenses, or allegedly attempted offenses identified in paragraph (b) of this subsection (4.5) or under paragraph (c) of this subsection (4.5) shall be deleted from any criminal justice record prior to the release of such record to any individual or agency other than a criminal justice agency or the named victim or victim's designee, when such record bears the notation "CHILD VICTIM" required by this subsection (4.5).

(b) A criminal justice agency or custodian of criminal justice records shall make the notation "CHILD VICTIM" on any record of official action and on the file containing such record when the official action is related to the commission or the alleged commission of any of the offenses in the following statutes:

(I) Part 4 of article 6 of title 18, C.R.S.;

(II) Internet sexual exploitation of a child under section 18-3-405.4, C.R.S.;

(III) Enticement of a child under section 18-3-305, C.R.S.;

(IV) Internet luring of a child under section 18-3-306, C.R.S.;

(V) Soliciting for child prostitution under section 18-7-402, C.R.S.;

(VI) Pandering of a child under section 18-7-403, C.R.S.;

(VII) Procurement of a child under section 18-7-403.5, C.R.S.;

(VIII) Keeping a place of child prostitution under section 18-7-404, C.R.S.;

(IX) Pimping of a child under section 18-7-405, C.R.S.;

(X) Inducement of child prostitution under section 18-7-405.5, C.R.S.;

(XI) Patronizing a prostituted child under section 18-7-406, C.R.S.;

(XII) Human trafficking of a minor for involuntary servitude under section 18-3-503, C.R.S.;

(XIII) Human trafficking of a minor for sexual servitude under section 18-3-504 (2), C.R.S.; and

(XIV) An attempt to commit any of the offenses listed in subparagraphs (I) to (XIII) of this paragraph (b).

(c) A criminal justice agency or custodian of criminal justice records shall make the notation "CHILD VICTIM" on any record of official action and on the file containing such record when the official action involves a child victim when:

(I) Any employee of the court, officer of the court, or judicial officer notifies such agency or custodian of the name of a child victim when such a name is disclosed to or obtained by such employee or officer during the course of proceedings related to such official action; or

(II) The record or file contains the name of a child victim and the child victim or the child's legal guardian requests the custodian of the criminal justice record to make such a notation.

(d) The provisions of this subsection (4.5) shall not apply to the sharing of information between:

(I) Criminal justice agencies, school districts, state institution of higher education police departments and authorized university administrators pursuant to section 23-5-141, C.R.S., assessment centers for children as defined in section 19-1-103 (10.5), C.R.S., or social services agencies as authorized by section 22-32-109.1 (3), C.R.S.;

(II) Public schools and school districts for the purposes of suspension, expulsion, and reenrollment determinations pursuant to sections 22-33-105 (5)(a), 22-33-106 (1.2) and (4)(a), and 19-1-303, C.R.S.; and

(III) The office of the child protection ombudsman, the office of the child's representative, the office of the respondent parents' counsel, child fatality review teams as defined in sections 25-20.5-404, 25-20.5-406, and 26-1-139, C.R.S., and state or county departments of human or social services in the exercise of their duties.

(5) Nothing in this section shall be construed to limit the discretion of the district attorney to authorize a crime victim, as defined in section 24-4.1-302 (5), or a member of the victim's immediate family, as defined in section 24-4.1-302 (6), to view all or a portion of the presentence report of the probation department.

History

Source: L. 77: Entire part added, p. 1246, 1, effective December 31. L. 92: (4) added, p. 1106, 6, effective July 1. L. 93: (4) amended, p. 1863, 1, effective June 6. L. 96: (4)(a) amended, p. 1587, 14, effective July 1. L. 97: (5) added, p. 1551, 2, effective July 1. L. 2000: (4)(b)(I)(A), (4)(b)(I)(B), and (4)(b)(I)(C) amended, p. 707, 36, effective July 1. L. 2006: (4)(a) and (4)(b)(I) amended, p. 421, 3, effective April 13. L. 2011: (4)(d) added, (HB 11-1169), ch. 119, p. 374, 2, effective April 20. L. 2016: (4.5) amended, (SB 16-110), ch. 90, p. 252, 1, effective September 1.

Annotations

Editor's note: Section 2 of chapter 90 (SB 16-110), Session Laws of Colorado 2016, provides that the notation requirement in subsection (4.5) applies to offenses committed on or after September 1, 2016. Section 2 further provides that criminal justice agencies and custodians of criminal justice records shall make reasonable efforts to comply with subsection (4.5) for offenses committed prior to September 1, 2016.

Annotations

 

ANNOTATION

Annotations

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

Person requesting inspection of an item has the initial burden to show that the item is likely a "criminal justice record". The capacity in which the custodian makes, maintains, keeps, and uses the record is the linchpin to this inquiry. Harris v. Denver Post Corp., 122 P.3d 1166 (Colo. 2005).

If the initial burden is met, the burden then shifts to the custodian to show whether the item in contention relates to the performance of public functions. The agency must look to the content of the record to resolve this issue. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

A grand jury indictment is a criminal justice record of official action presented in open court, the full release of which, save the identifying information of any alleged victims of sexual assault contained therein, is not contrary to public interest. People v. Thompson, 181 P.3d 1143 (Colo. 2008).

The mere fact that an indictment contains detailed factual allegations that would otherwise be subject to grand jury secrecy does not warrant that the indictment be sealed. People v. Thompson, 181 P.3d 1143 (Colo. 2008).

Trial court correctly held that city, as official custodian of criminal justice records, did not abuse its discretion in delaying the release of criminal justice records for 10 months, pending completion of criminal investigation into death of plaintiffs' husband and father. In making the determination whether to permit the inspection of criminal justice records, the custodian must balance (1) the privacy interests of individuals impacted by allowing inspection; (2) the agency's interest in keeping confidential information confidential; (3) the agency's interest in pursuing ongoing investigations without compromising them; (4) the public purpose served by allowing inspection; and (5) any other consideration relevant to the particular inspection request. Testimony of city's police chief reflected that he balanced relevant public and private interests at stake. His determination that disclosure would compromise an ongoing investigation represented an appropriate and reasonable basis for denying release of the records during the investigation. Proper application of an abuse of discretion standard primarily entails the court holding the custodian to its balancing role, which includes adequately explaining the reasons for the custodian's inspection determination. The police chief explained the rationale for denying release of the records while an investigation was ongoing. Madrigal v. City of Aurora, 2014 COA 67, 349 P.3d 297.