Who Owns E-Mail? Part I: CORA

People say stupid things that they shouldn’t in e-mails.  As a result, political scandals in Colorado and nationally frequently turns on the ability of outsiders to get copies of telltale e-mails.

Colorado law is kind to public officials who engage in online dalliances, but tough on officials who say stupid things about the public’s business.  But, who gets what depends upon who is asking and why.  This part one looks at what e-mail can be obtained using Colorado’s Open Records Act.The Tracy Baker Case

In Colorado, the device of choice to get e-mails is the Colorado Open Records Act (CORA), and one of our own lurid scandals, the affair of Arapahoe County Clerk and Recorder Tracey Baker, a Republican, with his subordinate Leesa Sale that ultimately got him recalled, was the case the Colorado Supreme Court chose to take in 2005 to define who owns e-mail in this state. (All quotes below are from The Denver Publishing Company v. Board of County Commissioners, 121 P.3d 190 (Colo. 2005).  Pinpoint citations, footnotes, and citation sentences within the quoted text are omitted.)

The Rocky Mountain News, which had brought the case, has argued for the rule that every record (including e-mail) maintained by a public agency is a public record.  Thus, if you sent an e-mail on a government system, it was a public record.  But, the Rocky Mountain News lost.

Instead, the Colorado Supreme Court held that public record, which the press and public are entitled to with certain exceptions, includes only records (including e-mail) that are used for public agency business or involve the receipt or expenditure of public funds.

In Tracy Baker’s case, there were:

622 e-mail messages authored by Baker, or authored by Sale and sent to Baker, that were sent using the County’s e-mail and text pager systems.  Of these messages, 570 contained sexually explicit and/or romantic content sent between Baker and Sale.

The court also noted that:

Although no party brought it to our attention, we are not unaware that a large portion of the sexually-explicit e-mail messages at issue here have been published on various websites.

The Basic Ruling

The Colorado Supreme Court had no trouble finding that “e-mail must meet the same requirements as any other record to be deemd a ‘public record.'”  The Colorado Public Records Act was amended in 1996 in a way that “was intentded to apply to all state employees and designed to treat e-mail the same way facsimiles and postal mail were treated under the original CORA provisions.”

But, its core holding was that:

To be a “public record”, an e-mail message must be for use in the performance of public functions or involve the receipt and expenditure of public funds.  The simple possession, creation, or receipt of an e-mail record by a public official or employee is not dispositive as to whether the record is a “public record”.  The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly-owned coputer equipment is insufficient to make the message a “public record.”

The Colorado Supreme Court also specifically addressed the special issues concerning elected officials stating that the Colorado Open Records Act:

was not intended to create a backdoor to acquire personal or private communications sent to or from an elected official by demonstrating a tenuous or indistinct impact or effect on an elected official’s performance (or non-performance) of his official duties.  The inclusion of an elected official’s correspondence, namely the offical’s e-mail messages, into CORA was in furtherance of the concept that “public business is the public’s business.  This inclusion did not eliminate the privacy protection inherent in the “public records” definition.

And, what about mixed messages?  In this case meaning messages that have both public and private content (one imagines an e-mail that says “I want to F– #@#@@#@$%%^^$#$$%, oh, and which voting machine should we buy, the expensive cool one, or the cheap nasty one?”)  Those are supposed to be redacted to remove all the juicy personal bits before they are released to the public.

The Server Matters, But Isn’t The End Of The Story

This doesn’t mean that the fact that e-mails are on a government server is irrelevant.  Someone making a Colorado Open Records Act request has to make some showing that the records requested are “public record” before the request will even be considered. 

When records are kept privately by a public official (e.g. on a home computer or private account — the Colorado equivalent of e-mails kept on Republican National Committee accounts), the person requesting them has to show that they were “made, maintained, or kept” in a public capacity.

In contrast, when the agency keeps the e-mails or other records on their computer system, the agency “must look to the content of the records to resolve whether they relate to the performance of public functions or involve the receipt or expenditure of public funds” and may withhold e-mails only if they do not (or another exception applies).

Bottom Line

If your e-mails “contain only sexually-explicit exchanges . . . . in furtherance of [a] personal relationship . . . . that convey “every thought and feeling” of a public official . . . . [to] shed light on the extent of [your] fluency with sexually-explicit terminology and to satisfy the prurient interests of the press and the public.”, then the press can’t get them in a CORA request.

You have to pay hackers, snoops and pornographers for stuff like that.

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