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24-72-305. Allowance or denial of inspection - grounds - procedure - appeal.

Statute text

(1) The custodian of criminal justice records may allow any person to inspect such records or any portion thereof except on the basis of any one of the following grounds or as provided in subsection (5) of this section:

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

(b) Such inspection is prohibited by rules promulgated by the supreme court or by the order of any court.

(1.5) On the ground that disclosure would be contrary to the public interest, the custodian of criminal justice records shall deny access to the results of chemical biological substance testing to determine the genetic markers conducted pursuant to sections 16-11-102.4 and 16-23-104, C.R.S.

(2) to (4) Repealed.

(5) On the ground that disclosure would be contrary to the public interest, and unless otherwise provided by law, including as required by section 24-72-303 (4), the custodian may deny access to records of investigations conducted by or of intelligence information or security procedures of any sheriff, district attorney, or police department or any criminal justice investigatory files compiled for any other law enforcement purpose.

(6) If the custodian denies access to any criminal justice record, the applicant may request a written statement of the grounds for the denial, which statement shall be provided to the applicant within seventy-two hours, shall cite the law or regulation under which access is denied or the general nature of the public interest to be protected by the denial, and shall be furnished forthwith to the applicant.

(7) Any person denied access to inspect any criminal justice record covered by this part 3 may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why said custodian should not permit the inspection of such record. A hearing on such application shall be held at the earliest practical time. Unless the court finds that the denial of inspection was proper, it shall order the custodian to permit such inspection and, upon a finding that the denial was arbitrary or capricious, it may order the custodian to pay the applicant's court costs and attorney fees in an amount to be determined by the court. Upon a finding that the denial of inspection of a record of an official action was arbitrary or capricious, the court may also order the custodian personally to pay to the applicant a penalty in an amount not to exceed twenty-five dollars for each day that access was improperly denied.

(8) The allowance or denial of the right to inspect criminal justice records that contain specialized details of security arrangements or investigations shall be governed by section 24-72-204 (2)(a)(VIII).

History

Source: L. 77: Entire part added, p. 1246, 1, effective December 31. L. 78: IP(1) amended and (2) to (4) repealed, pp. 403, 407, 1, 4, effective May 5. L. 99: (1.5) added, p. 1170, 6, effective July 1. L. 2000: (1.5) amended, p. 1266, 6, effective May 26; (1.5) amended, p. 1028, 8, effective July 1. L. 2002: (1.5) amended, p. 1024, 44, effective June 1; (1.5) amended, p. 1155, 16, effective July 1. L. 2005: (8) added, p. 503, 3, effective July 1. L. 2006: (1.5) amended, p. 1692, 16, effective July 1, 2007. L. 2007: (1.5) amended, p. 2040, 61, effective June 1. L. 2009: (1.5) amended, (SB 09-241), ch. 295, p. 1577, 3, effective September 30, 2010. L. 2010: (1.5) amended, (HB 10-1422), ch. 419, p. 2087, 77, effective August 11. L. 2019: (5) amended, (HB 19-1119), ch. 96, p. 354, 2, effective April 12.

Annotations

Editor's note: (1) Amendments to subsection (1.5) by House Bill 00-1166 and Senate Bill 00-121 were harmonized.

(2) Amendments to subsection (1.5) by Senate Bill 02-159 and Senate Bill 02-019 were harmonized.

Annotations

 

ANNOTATION

Annotations

Court considers and weighs public interest in determining disclosure question. The limiting language making certain of the public records provisions of Colorado's open records laws applicable except as "prohibited by rules promulgated by the supreme court or by the order of any court" are a reference to the rules of civil procedure and expresses the legislative intent that a court should consider and weigh whether disclosure would be contrary to the public interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

General assembly's purpose in providing for judicial review of discretionary inspection decisions is to prevent abuse of discretion in denying inspection of records. Where county sheriff did not properly perform the role of balancing public and private interests in denying an inspection, the district court should have ordered him to do so. Freedom v. El Paso County Sheriff's Dept., 196 P.3d 892 (Colo. 2008).

Police personnel files and staff investigation reports not exempt from discovery. The open records provisions do not, ipso facto, exempt the personnel files and the staff investigation bureau reports of the Denver police department from discovery in civil litigation. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Investigative records resulting from internal affairs investigation are "criminal justice records" under 24-72-302 (4) because they were made and maintained in the exercise of an authorized function of the department of corrections governed by administrative regulations. Denial of access to the investigative records was proper because disclosure of the records would be contrary to the public interest. Johnson v. Colo. Dept. of Corr., 972 P.2d 692 (Colo. App. 1998).

Nondisclosure of police intelligence information. Trial court did not err in failing to permit petitioner full access to a city police department's taped recordings of informant's statements in which petitioner's name was mentioned where the tape could reasonably be classified as police intelligence, where the informants statements became the basis for an internal police investigation, and where the police had a legitimate interest in avoiding disclosure of investigations of potential criminal conduct not ripe for prosecution. Prestash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).

Coroners' autopsy reports are "public records" and not "criminal justice records", so that autopsy report on homicide victim inspection by custodian thereof only pursuant to procedure under the open records law requiring establishment that disclosure would do "substantial injury to the public interest". Freedom Newspapers, Inc. v. Bowerman, 739 P.2d 881 (Colo. App. 1987).

If a private record seized from an individual is not relevant to the performance of the criminal justice agency's public function, the record is not subject to inspection. If, however, the record is relevant to the agency's public function and the agency obtained the record in its public capacity and no statute or court order prohibits inspection, the custodian may consider releasing the record in response to an inspection request. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

Recordings seized by a sheriff's department and used by the department to investigate the commission of crimes are criminal justice records subject to inspection. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

Section 13-17.5-102.3 requires an inmate seeking access to his or her mental health records to first exhaust all available administrative remedies. Kopec v. Clements, 271 P.3d 607 (Colo. App. 2011).

An inmate's action seeking access to such records under this section is not exempt from the requirement of 13-17.5-102.3. Kopec v. Clements, 276 P.3d 607 (Colo. App. 2011).

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.

Trial court did not err in denying plaintiffs' request for penalties, attorney fees, and costs as sanction for city's erroneous failure to respond to plaintiffs' request for a statement of the grounds for an initial denial of inspection in violation of subsection (6). Trial court found city's error, which resulted from turnover in personnel, was unintentional and without malice or ulterior motive. Although the error cannot be condoned, given legal obligation to respond promptly, trial court correctly declined to impose sanctions for the error. Subsection (6) does not prescribe sanctions for a custodian's failure to comply with that subsection. Subsection (7) does not allow sanctions for a violation of subsection (6). Subsection (7) authorizes attorney fees and costs only if the court finds that the custodian's denial of inspection was actually improper as well as arbitrary or capricious and authorizes penalties only if the custodian's denial of inspection of a record of an official action was improper as well as arbitrary or capricious. The general assembly has not prescribed a civil remedy for a violation of subsection (6). Madrigal v. City of Aurora, 2014 COA 67, 349 P.3d 297.