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Date: 02-02-2004

Case Style: The Denver Post Corp. v. Cook, Sheriff of Jefferson County

Case Number: 02CA1327

Judge: Roy

Court: Colorado Court of Appeals

Plaintiff's Attorney:

Faegre & Benson, Thomas B. Kelly, Steven D. Zansberg, Eileen Kiernan-Johnson, Denver, Colorado, for Intervenor-Appellant

Montgomery Kolodny Amatuzio, C. Michael Montgomery, Joel A. Kolodny, Steven G. Greenlee, Denver, Colorado, for Intervenors-Appellees Wayne Harris and Katherine Harris

Defendant's Attorney:

William A. Tuthill, III, County Attorney, Susan Prose, Assistant County Attorney, Lily W. Oeffler, Assistant County Attorney for Defendants-Appellees

Ken Salazar, Attorney General, Elizabeth H. McCann, Assistant Attorney General, Alan J. Gilbert, Solicitor General, Denver, Colorado, for Amicus Curiae Attorney General, State of Colorado

Description:

Appellant, The Denver Post (the Post), appeals from the district court's order in favor of the Jefferson County Sheriff's Office (JCSO) finding that certain writings and tape recordings seized by law enforcement officers pursuant to search warrants are not "criminal justice records" and are, therefore, not subject to the Colorado Criminal Justice Records Act, § 24-72-301, et seq., C.R.S. 2003 (the Act). We remand for further proceedings.

The events surrounding the Columbine High School tragedy are well known. On April 20, 1999, Eric Harris and Dylan Klebold entered Columbine High School heavily armed and with homemade explosive devices. They shot and killed twelve students and one teacher, injured numerous others, and ultimately killed themselves.

As relevant to this appeal, the JCSO began an investigation into the attack on that same day. After obtaining search warrants, deputy sheriffs entered and searched the Harris and Klebold family homes. Among the items seized from the homes were video and audio tapes made by the boys, in which they displayed their arsenal of weapons and boasted about their plans, and written material, in which the boys expressed their beliefs and plans (collectively, the recordings).

In April 2000, family members of the student victims initiated this action against the JCSO seeking access under the Act to certain information it collected during its investigation. Other parties were allowed to intervene, but no one sought disclosure of the recordings.

In May 2000, the JCSO issued a Final Report documenting its investigation and announcing its conclusions. The JCSO later returned many of the items seized from the Harris and Klebold homes; however, it kept the recordings.

In January 2002, the Post intervened with a request to review the recordings. The trial court bifurcated the proceedings, first to determine whether the recordings were "criminal justice records" within the meaning of the Act, and then to determine whether they should be disclosed to the public pursuant to the Act.

The trial court concluded that the recordings were not "criminal justice records" merely because the JCSO possessed them, that the specific items sought by the Post were not "criminal justice records," and, accordingly, that the Act did not govern their release and disclosure.

I.

At the outset, we note that, with exceptions not applicable here, property seized by law enforcement officials remains the property of its owner prior to the seizure. See People v. Angerstein, 194 Colo. 376, 572 P.2d 479 (1977); People v. Buggs, 631 P.2d 1200 (Colo. App. 1981).

It is clear that the recordings are not, and never have been, the property of the JCSO. As to the Klebolds, this issue was previously determined in Klebold v. Search & Seizures, (Colo. App. No. 01CA1240, May 16, 2002)(not published pursuant to C.A.R. 35(f)), in which the family requested return of tapes and documents, some or all of which are the subject of this proceeding. The JCSO makes no claim of ownership here; indeed, it disclaims ownership of the recordings.

II.

We next address whether the recordings are "criminal justice records" under the Act. We remand for further proceedings on this issue.

The Act is Part III of the Colorado Open Records Act, (CORA). Section 24-72-101, et seq., C.R.S. 2003. The purpose of the Act is clearly stated as follows: "The general assembly hereby finds and declares that the maintenance, access and dissemination, completeness, accuracy, and sealing of criminal justice records are matters of statewide concern and that, in defining and regulating those areas, only statewide standards in a state statute are workable." Section 24-72-301(1), C.R.S. 2003.

In adopting the Act, the General Assembly intended to open the records of law enforcement agencies to public scrutiny to better ensure the integrity of agency actions. See § 24-72-301 C.R.S. 2003; Background Info. Servs., Inc. v. Office of State Court Adm'r, 980 P.2d 991 (Colo. App. 1998)(interpreting CORA), rev'd on other grounds, 994 P.2d 420 (Colo. 1999).

CORA, however, separately limits access to the records of investigations conducted by various law enforcement agencies if disclosure would be contrary to the public interest. Section 24-72-204(2)(a)(I), C.R.S. 2003. One apparent purpose of this limitation is to protect the integrity of investigations.

CORA's public policy concerns are paralleled by the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2002), and many other states' open records or "government in the sunshine" statutes. See Cal. Gov't Code § 6250, et seq. (2002); Ga. Code Ann. § 50-18-70 (2002); Iowa Code § 22, et seq. (2002); Kan. Stat. Ann. § 45-215, et seq. (2002); Okla. Stat. tit. 51, § 24A.1, et seq. (2003); Tenn. Code Ann. §§ 10-7-505 to -506 (2002); Wash. Rev. Code § 42.17.010, et seq. (2003).

The Colorado Supreme Court has applied the federal test to determine whether documents are disclosable under CORA. In re Wick Communications Co. v. Montrose County Bd. of County Comm'rs, ___ P.3d ___ (Colo. No. 03SA194, Dec. 15, 2003).

Under the Act and as relevant here:

"Criminal justice records" means all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative

rule . . . .

Section 24-72-302(4), C.R.S. 2003 (emphasis added). Section 24-72-303, C.R.S. 2003, implements the public policy that criminal justice records are open to public review. The Act provides the custodian with some discretion to regulate the inspection of its records:

[A]ll 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.

Section 24-72-304(1), C.R.S 2003.

However, the Act also places limits on disclosure. The custodian may deny inspection if (1) the inspection is contrary to any state statute; (2) the inspection is prohibited by court rule or order; (3) the disclosure would be contrary to the public interest; and (4) unless otherwise provided by law, the records are "of investigations conducted by . . . any sheriff . . . or any criminal justice investigatory files compiled for any other law enforcement purpose." Section 24-72-305(1), (1.5), (5), C.R.S. 2003.

The application of the Act is limited to "criminal justice records." Therefore, as a threshold matter, it must be determined whether the recordings here are "criminal justice records." If they are, a presumption in favor of access attaches to give full force to the legislative purpose of the Act. Bodelson v. Denver Publ'g Co., 5 P.3d 373 (Colo. App. 2000). The trial court must then determine whether any of the exceptions to disclosure enumerated in § 24-72-305 applies. However, exceptions are to be narrowly construed. See Bodelson v. Denver Publ'g Co., supra.

In Wick, supra, the supreme court considered whether the private diary of a public official was a public record subject to disclosure under CORA. There, the county manager fired another county official and used his personal diary to refresh his memory of events leading to the dismissal. In his report to the county commissioners, the county manager apparently referred to and quoted excerpts from his diary.

The plaintiff news organization then sought disclosure of the complete diary, asserting that it was a public record subject to disclosure pursuant to CORA.

The supreme court "adopted" the three-part test applicable to FOIA as the appropriate analysis under CORA, that is, whether the agency (1) improperly (2) withheld (3) a public record. The court concluded that if the county manager possessed the diary in his official capacity, the diary was a public record subject to CORA. The court then held that, under the unique circumstances there presented, a person requesting disclosure of a private document held by a public official in his or her official capacity has the initial obligation to present evidence that the document is likely a public record subject to disclosure. The court further concluded that the plaintiff had failed to fulfill this initial evidentiary obligation to show that the diary was made, maintained, or kept by a public entity because the diary (1) was made by the county manager in his individual capacity, (2) was not maintained by the county, and (3) was not kept by the county or by the county manager in his official capacity.

Wick is instructive because both CORA and the Act use the phrase "made, maintained, or kept" in defining "public records" and "criminal justice records." Here, there is no dispute that the JCSO holds, or held, the recordings in its official capacity. Based on the rationale and holding in Wick, we conclude that, so long as the JCSO keeps, or kept, the recordings "for use in the exercise of functions required or authorized by law or administrative rule," the recordings are, or were, criminal justice records under the Act. See § 24-73-302(4). However, if the JCSO no longer requires the items for the purposes enumerated in the statute, then its continued possession is as a bailee.

As a depository or mere possessor, the JCSO would have had responsibility for, but very limited authority over, the property. A bailment may be created by operation of law, and even a gratuitous bailee is liable to the owner for damage caused by simple negligence. Christensen v. Hoover, 643 P.2d 525 (Colo. 1982). A bailee is bound, at its peril, if it misdelivers the property to one other than the lawful owner, and it can only release the property to others upon the express or implied order of the bailor. Wheelock Bros. v. Bankers Warehouse Co., 115 Colo. 197, 171 P.2d 405 (1946).

The JCSO apparently completed its Final Report in May 2000. The Post made a written request for access to the recordings, through counsel, to the Jefferson County Attorney on December 7, 2001, and moved to intervene on January 7, 2002. It is undisputed that there are no criminal charges or proceedings pending for which the recordings are required. At oral argument, the county attorney represented that the JCSO continued to hold the recordings only because of the pending requests and litigation, including this action.

Therefore, we must remand the matter to the trial court to determine whether, on the date of the Post's request, the JCSO was holding the recordings "for use in the exercise of functions required or authorized by law or administrative rule." If the recordings were so held, the trial court must determine whether they are subject to disclosure and inspection under the Act, that determination being subject to appeal. See § 24-72-305. If the recordings were not so held, the trial court shall deny the Post access and dismiss its complaint, subject, again, to appeal.

Outcome: The case is remanded for further proceedings consistent with the views expressed in this opinion.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None



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