Hoffman Decision Denver Post Bill Ritter

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Decision on Ritter's Phone Records

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Hoffman Decision Denver Post Bill Ritter

  1. 1. I SUPREME COURT, STATE OF COLORADO Court Address: 101 West Colfax, Suite 800 Denver, Colorado 80202 Colorado Court ofAppeals, Case No. 08-CA-2659 Disaict Court, City and County ofDenver Case No. 08-CV-7083 The Hon. Morris B. Hoffman, presiding Plaintiffs/Petitioners: DENVER POST CORP., a Colorado corporation, doing business as The Denver Post; and KAREN CRUMMY, a Colorado citizen v. Defendant/Respondent: BILL RITTER, Governor ofthe State ofColorado Attorneys for Plaintiffs/Petitioners: Thomas B. Kelley,# 1971 Steven D. Zansberg, #26634 Christopher P. Beall, #28536 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. 1888 Sherman Street, Suite 370 Denver, Colorado 80203 Telephone No.: (303) 376-2400 Facsimile No.: (303) 376-2401 tkelley@lskslaw.com szansberg@lskslaw.com cbeall@lskslaw.com FILED IN THE --- SUPREME COURT OF THE STATE OF COLORADO SUSAN J. FESTAG CLE:~K A COURTUSEONLY A Case Number: 1O-SC-94 PETITIONERS' REPLY BRIEF
  2. 2. CERTIFICATE OF COMPLIANCE I hereby certify that this briefcomplies with all requirements ofC.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The briefcomplies with C.A.R. 28(g): it contains 5,666 words in those portions subject to the Rule. The briefcomplies with C.A.R. 28(k): it contains under a separate heading (1) a concise statement ofthe applicable standard ofappellate review with citation . to authority; and (2) a citation to the precise location in the record ("CD _"), not to an entire document, where the issue was raised and ruled upon. . By~~~~~~~~~~ Thomas B. Kelley, # 1971 Steven D. Zansberg, #26634 Christopher P. Beall, #28536 Attorneys for Plaintiffs/Petitioners, THE DENVER POST CORPORATION and KAREN CRUMMY
  3. 3. TABLE OF CONTENTS TABLE OF AUTHOR1TIES ................................................................................... iii INTRODUCTION..................................................................................................... 1 ARGU11ENT ............................................................................................................ 3 THIS COURT'S REVIEW IS DE NOVO AND NO EVIDENCE NEED BE PRESENTED BY THE POST UNDER RULE 12(b)(5)......................... 3 IN DETERMINING WHETHER THE COURT OF APPEALS ERRED, THIS COURT MUST ACCEPT THE ALLEGATIONS OF THE FIRST AMENDED COMPLAINT AS TRUE...................................... 5 THE GOVERNOR'S ATTEMPT TO SHIFT THE BURDEN OF PROOF ON THE ISSUE "FOR USE IN THE EXERCISE OF OFFICIAL FUNCTIONS" SHOULD BE REJECTE .................................... 6 THE STIPULATIONS DO NOT SAY WHAT THE GOVERNOR CLAIMS T!IBY DO....................................................................................... 7 THE GOVERNOR'S PROPOSED INTERPRETATION OF THE STATUTORY TERM "MAKE" SHOULD BE REJECTED AS OVERLY RESTRICTIVE AND CONTRARY TO LEGISLATIVE INTEN .......................... 8 CASES DECIDED UNDER THE FEDERAL FOIA ARE INAPPOSITE................................................................................................ 13 THE ALLEGATIONS OF THE COMPLAINT AND FIRST AMENDED COMPLAINT SHOW THAT THE GOVERNOR HKEPT" THE RECORDS IN HIS OFFICIAL CAPACIT ......................................... 15 THE COURT NEED ONLY CONSIDER THE CONTEXT, NOT THE CONTENT OF TI-:IE RECORDS ................................................................. 19 CONCLUSION........................................................................................................ 23 11
  4. 4. TABLE OF AUTHORITIES Cases Bagby v. Sch. Dist. No. l, 528 P.2d 1299 (Colo. 1974)................................................................................... 8 Bd. ofCounty Comm 'rs v. Costilla County Conservancy Dist., 88 P.3d 1118 (Colo. 2004)..................................................................................... 9 Bloomberg LP. v. SEC, 357 F. Supp. 2d 156 (D.D.C. 2004)..................................................................... 14 Bureau ofNat'! Affairs v. DOJ, 742 F.2d 1484 (D.C. Cir. 1984)........................................................................... 14 Colonial Bank v. Colo. Fin. Serv. Bd., 961P.2d579 (Colo. App. 1998).......................................................................... 13 Denver Post Corp. v. Ritter, 230 P.3d 1238 (Colo. App. 2009)........................................................................ 20 Denver Pub! 'g Co. v. Bd. ofCounty Comm 'rs, 121P.3d190 (Colo. 2005)................................................. 2, 4, 6, 8, 19, 20, 21, 22 Detroit News, Inc. v. City ofDetroit, 516 N.W.2d 151 (Mich. Ct. App. 1994)................................................................ 7 Downing v. Brown, 3 Colo. 571 (1877) ............................................................................................... 19 Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998)........:............................................................... 13 Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005)................................................................... 4, 5, 14, 21 Indus. Comm 'n v. Milka, 410 P.2d 181(Colo.1966)...............,..................................................................... 5 lll
  5. 5. O'Neill v. City o/Shore/ine, 240 P.3d 1149 (Wash. 2010) ............................................................................... 11 Office ofthe Governor v. Washington Post Co., 759 A.2d 249 (Md. App. 2000) ........................................................................... 15 People v. Corr, 682 P.2d 20 (Colo. 1984)........:............................................................................ 1O People v. Mason, 989 P.2d 757 (Colo. 1999)................................................................................... 1O People v. McKunes, 124 Cal. Rptr. 126 (Cal. Ct. App. 1975).............................................................. 10 People v. Trujillo, 521 P.2d 769 (Colo. 1974)................................................................................... 19 PG Publ'g Co. v. City ofWashington, 638 A.2d 422 (Pa. Commw. Ct. 1994).................................................................. 7 Ryanv. DOJ, 617 F.2d 781 (D.C. Cir. 1980)............................................................................. 15 Sibille v. Fed. Reserve Bank, 770 F. Supp. 134 (S.D.N.Y. 1991) ...................................................................... 14 Summers v. DOJ, 934 F. Supp. 458 (D.D.C. 1996).......................................................................... 15 Trinity Broad. ofDenver, Inc. v. City ofWestminster, 848 P.2d 916 (Colo. 1993)..................................................................................... 3 Wick Commc 'ns Co. v. Montrose County Bd. ofCounty Comm 'rs, 81 P.3d 360 (Colo. 2003)......................................................... 8, 15, 16, 19, 20, 23 Zubeck v. El Paso County Retirement Plan, 961P.2d597 (Colo. App. 1998)............................................................................ 9 IV
  6. 6. Statutes §§ 24-72-201, et seq., C.R.S. (20), Colorado Open Records Act........................... 13 §§ 24-72-301, et seq., C.R.S. (2008), Colorado Criminal Justice Records Act ..... 14 Rules C.R.C.P. 12(b)(5) ...................................................................................................... I Regulations 47 C.F.R. § 42.6 (2009)........................................................................................... 17 Other Authorities Cell phones aid in solving crime, Augusta Chronicle, Jan. 12, 2009, http://chronicle.augusta.com/stories/2009/01/l2/met_507344 ........................... 11 Fred Galves, Christine Galves, Ensuring The Admissibility OfElectronic Forensic Evidence And Enhancing Its Probative Value At Trial 19-SPG Crim. Just. 37, 38 (2004) ..................................................................................... 11 Larry Dignan, Digital Fingerprints Led Feds to Zazi: Investigators Followed a Digital Path to Track Down the Incriminating Evidence on Suspected Terrorist, CBS News, available at http://www.cbsnews.com/stories/2009/09/25/tech/ main53391l2.shtmL.......... 11 Legis. Counsel ofColo. Gen. Assembly, Open Pub. Records for Colo. 1-2 (Research Publ'n No. 126, 1967) .................................................................... 3, 21 Oxford American Desk Dictionary (1998)........................................................ 18, 19 Webster's New Twentieth Centwy Dictionary (unabridged, 2d ed.)...................... 18 v
  7. 7. INTRODUCTION Nothing in the Governor's Answer Brief("Answer Br.") controverts these factual allegations of the Post's complaint: the records at issue (which document every cell phone conversation the Governor had, during regular business hours, in which he discussed public business) were generated at the initiative and direction ofthe Governor, while acting in his official capacity; thereafter, the Governor retained the records (itemized phone logs) for reasons other than to effectuate payment ofthose bills. One (indeed, the only) logical inference from these facts (the Governor has suggested no other such inference) is that the Governor "kept" the records to determine with whom he spoke on what occasion, just as people routinely make use oftheir itemized call logs. Thus, under C.R.C.P. 12(b)(5), The Post met its burden of showing that the records were both "made" and "kept" by the Governor in his official capacity. In his Answer Brief, the Governor attempts to avoid the procedural posture in which this case arises, and tries, repeatedly, to shift the burden ofproofto The Post on issues on which it does not bear any such burden. First, the Governor suggests that this Court should disregard the allegations ofthe First Amended Complaint tendered by The Post, despite the fact that the Court of Appeals affirmed the District Court's finding that allowing those allegations would be
  8. 8. futile. Second, the Governor suggests that The Post bears the burden ofproving that documents he made and/or kept in his official capacity were also made and/or kept "for use" in the conduct ofofficial business. However, this Court's cases are clear that The Post's only burden, at the initial pleading stage, was to allege sufficient facts to show that the Governor made and/or kept the records in his official capacity. (It is the Governor, not The Post, who bears the burden ofproof on the "for use in the exercise of' element.) Equally untenable is the Governor's arguments that the words "made" and "for use" in the Open Records Act should be construed narrowly to mean "wrote, or "authored," and "used." Were the Court to adopt the Governor's proposed definitions ofthese terms, it would violate the well-settled precedents that remedial statutes, such as the Open Records Act, must be given a broad and liberal construction in favor ofthe beneficiary ofsuch statutes, the public. Here, the records at issue document the conduct ofthis State's highest elected public servant acting in his official capacity. As this Court has repeatedly recognized, the overarching purpose of the public records law is to provide this state's citizens with the opportunity to observe and monitor the workings oftheir government: "'[p]ublic business is the public's business.'" Denver Publ'g Co. v. Bd. ofCounty Comm 'rs, 121 P.3d 190, 196 (Colo. 2005) (quoting Legis. Counsel 2
  9. 9. ofColo. Gen. Assembly, Open Pub. Records for Colo. 1-2 (Research Publ'n No. 126, 1967) ("Public Records Report"). Thus, this Court should reject the Governor's assertion that 44 a record does not become a public record merely because it discloses something about the workings ofgovernment." (Answer Br. at 38 (emphasis added).) To the contrary, when a record is generated, and thereafter kept, by a government official, which documents and memorializes the conduct of ' 4 public business," such record does become a 44 public record." (Whether the 44 public record" is subject to an exemptionfrom disclosure presents a separate and distinct issue, not raised by this appeal.) ARGUMENT THIS COURT'S REVIEW IS DE NOVO AND NO EVIDENCE NEED BE PRESENTED BY THE POST UNDER RULE 12(b)(5) The Govemor suggests (for the first time in this action) that the Cou11's review ofthe judgment below should be governed by the burden-shifting protocol associated with the assertion ofgovernmental immunity. (Answer Br. at 17-18 (citing Trinity Broad. ofDenver, Inc. v. City ofWestminster, 848 P.2d 916 (Colo. 1993)).) The Govemmental Immunity Act has no bearing on this action; the case at bar arises under Colorado's Open Records Act ("CORA"), which explicitly subjects govemmental entities, including the Governor, to suit upon denial of access to "public records." This Court has already made clear that in such cases, 3
  10. 10. the records requestor (or "applicant" under the statute) need only plead facts that show the records requested were "likeli' made, maintained, or kept by a governmental official acting in an official capacity. Harris v. Denver Post Corp., 123 P.3d 1166, 1172 (Colo. 2005) ("In what capacity the custodian makes, maintains or keeps the record is the linchpin to this inquiry."). Once the applicant has done so, "the burden then shifts to the custodian to show whether the items in contention 'relate to the performance of public functions." Id. (quoting Denver Publ'g Co., 121 P.3d at 191). The same approach should be applied in this case, in which the District Court ruled upon a motion to dismiss pursuant to C.R.C.P. 12(b)(5); this court reviews such an order de novo, and must accept all of the well-pleaded allegations of fact in the plaintiffs' Complaint as true. Here, the Complaint included detailed and specific averments that the Governor participated in the process of "making" the phone records at issue each time he used the phone in performing official functions as the Governor. (See CompI. ii 16, CD 4; lst Am. Compl. ("FAC") ~~ 24-25, CD 166.) The Complaint and FAC also contained allegations that the Governor kept the records because of their utility as a record ofofficial conduct and not solely to pay his phone bills. (FAC ~ 28, CD 166.) No more need be 4
  11. 11. pleaded for the applicant to make the "threshold showing'' that this Court has described as not Heverly burdensome." Harris, 123 P.3d at 1172. IN DETERMINING WHETHER THE COURT OF APPEALS ERRED, THIS COURT MUST ACCEPT THE ALLEGATIONS OF THE FIRST AMENDED COMPLAINT AS TRUE The Governor argues that the allegations ofThe Post's FAC should be disregarded because the trial court determined they were futile and the Court of Appeals, after considering those factual allegations, affirmed the District Court's denial ofThe Post's motion for leave to amend its original complaint. (Answer Br. at 19-20 & n.l.) Clearly, the allegations of the FAC which formed the basis of the Court of Appeals' ruling below, are within the ambit ofthe question accepted for certiorari review. Ifa denial of leave to amend on grounds that the proposed amendment would be futile did not permit the reviewing court to consider the proposed amended allegations, such a ruling would effectively be unreviewable. (See Opening Br. at 5 n.6.) The Governor also asks the Court to disregard the letter from his (former) chief legal counsel dated July 28, 20 I0, that was appended to the Opening Brief. (See Answer Br. at 21.) This Court may take judicial notice ofmatters of public record, see Industrial Commission v. Milka, 410 P.2d 181, 183 (Colo. 1966» such 5 .
  12. 12. as official correspondence from the Governor's legal counsel acting in his official capacity.1 THE GOVERNOR'S ATTEMPT TO SHIFT THE BURDEN OF PROOF ON THE ISSUE "FOR USE IN THE EXERCISE OF OFFICIAL FUNCTIONS" SHOULD BE REJECTED The Governor mistakenly argues that The Post bore the burden ofproving that the phone records at issue are likely "to be used for a function 'required or authorized by law or administrative rule."' (See Answer Br. at 23-24.2 (citation omitted)) This attempt to shift the burden to The Post on the second step- which arises only after The Post has met its initial "threshold burden" ofshowing that the phone records were made, maintained, or kept in the Governor's official capacity - is contrary to established law. See Denver Publ'g Co., 121 P.3d at 199. 1 Curiously, the Governor's counsel does not address the substance ofthe letter (clarifying that all of the Governor's official eelI phone use after July 2008 occurred on his "personal" cell phone) which contradicts the Governor's stipulation of fact to the District Court (stating that most, but not all, ofthe Governor's official cell phone use occurred on his "personal" cell phone). (See Opening Br. at 6 n.7.) 2 (See also Answer at 26 & 38.) Indeed, the Governor seeks to collapse the two issues - the capacity in which a record is made, maintained, or kept, and the use for which a document was intended- into a single inquiry. (See Answer at 38 (suggesting that "the use for which a document is made, maintained, or kept determines the capacity in which the custodian makes, maintains, or keeps a document").) Ifthis were true, the Court's prior precedents, including Denver Publ'g Co. v. Bd. ofCounty Comm'rs, 121P.3d190 (Colo. 2005), would need to be reversed. 6
  13. 13. The only issue presently before this Court is whether the allegations ofthe Complaint and FAC, taken as true, establish that the Governor made, or maintained or kept the records at issue in his official capacity. (See Answer Br. at 24 ("Ifthe Governor makes, maintains, or keeps the telephone records in his official capacity as Governor, then the records could be public records.").) Assuming that question is answered in the affirmative, as The Post urges, then the Governor may seek to meet his burden ofproofon remand. THE STIPULATIONS DO NOT SAY WHAT THE GOVERNOR CLAIMS THEY DO The Governor claims that because it was stipulated that the telephone bills at issue "are generated by the service provider," The Post is precluded from arguing that the Governor played any role in '4 making,' those records.3 (Answer Br. at 24- 25.) Notably, the stipulated fact cited does not contain the word "solely." Both the complaint and the FAC alleged, with particularity (not generalizations or speculation), that the Governor played a necessary and indispensable role in the process ofgenerating the itemized ca11 logs that are the subject ofThe Post's 3 Neither ofthe two out-of-state authorities cited by the Governor hold, upon resolving a contested issue, that phone companies, exclusively, are responsible for generating the "call log" portion of monthly billing statements. See Detroit News, Inc. v. City ofDetroit, 516 N.W.2d I51, 153 (Mich. Ct. App. 1994); PG Publ'g Co. v. City ofWashington, 638 A.2d 422, 426 (Pa. Commw. Ct. 1994). 7
  14. 14. request. (See Compl., 16, CD 4; FAC ,, 24-25, CD 166.) Under C.R.C.P. 12(b)(5), those allegations must be accepted as true. THE GOVERNOR'S PROPOSED INTERPRETATION OF THE STATUTORY TERM "MAKE" SHOULD BE REJECTED AS OVERLY RESTRICTIVE AND CONTRARY TO LEGISLATIVE INTENT The Governor urges the Court to interpret the statutory te1m "made" narrowly, to mean only to "author," "write," or "compose" a document. (Answer Br. at 27-28; but see Opening Br. at 14 (noting several more expansive definitions of"make" from English dictionaries, including "to cause; bring about").) The adoption ofthe Governor's proposed narrow construction of that term4 would be contrary to this Court's precedents that require that "remedial" statutes, like CORA (and the closely related Open Meetings Law), should be given a liberal construction in favor ofopenness. See Bagby v. Sch. Dist. No. I, 528 P.2d 1299, 1302 (Colo. 1974) (holding that the "Public Meetings" law is a "remedial,, statute, and "[a]s a rule, these kinds ofstatutes should be interpreted mostfavorablyfor the beneficiary, the public") (citation omitted) (emphasis added); Denver Pub/'g Co., 121 P.3d at 200 (construing the term "public record" by looking to the overarching objective ofthe Act as set forth in the Public Records Report, which declared that "[p}ublic business is the public's business"); cf Bd. ofCounty 4 The Governor's proposed narrow construction ofthe term Hfor use,, is addressed infra at 18-19. 8
  15. 15. Comm 'rs v. Costilla County Conservancy Dist., 88 P.3d 1118, 1195 (Colo. 2004) (holding that the Open Meetings Law "should be construed as broadly as possible to increase government transparency"); Zubeck v. El Paso County Retirement Plan, 961 P.2d 597, 600 (Colo. App. 1998) (applying CORA and the Open Meetings Law in tandem and construing their definitions broadly). The Governor suggests that adopting The Post's position - as alleged in the FAC, that the Governor's knowledge and intention that his official-capacity phone calls shall be memorialized in an itemized log of such calls (i.e., at his behest) by the phone company- would make a mockery ofthe term "make," and would lead to a host ofpurportedly "absurd" results. (Answer Br. at 28-29.5 ) However, it is the Governor's position that cannot be reconciled with common sense and established precedent. Ifthe Governor's view were correct - that one who makes a phone call does not also "make" the record ofthe phone call in the hands ofthe phone company - then a phone caller would have no standing to complain when 5 It is no more "absurd" to suggest that the Governor "makes" a record of his phone call every time he uses a phone, "with knowledge and intent" that the phone company generate such itemized call logs, than it is "absurd" to suggest that a person "makes" a record of his usage of a credit card every time he tenders that card for use in purchasing products or services, or that he "makes" a record ofthe date, time, and amount ofgas he purchases when he fills the tank of his car and then hits the "yes" button on the gas pump when asked ifhe wishes to receive a receipt. (See Opening Br. at 18 (listing other examples where parties' conduct intentionally generates a record ofthat conduct).) 9
  16. 16. the government sought to obtain such phone call records, by search warrant or subpoena, from the phone company; in the Governor's view, the records would be information generated exclusively by the phone company. But see People v. Corr, 682 P.2d 20 (Colo. 1984) (holding that the person who made the phone calls has a constitutionally protected right to challenge the government's seizure ofthe records memorializing those calls in the possession ofthe phone company); People v. Mason, 989 P.2d 757 (Colo. 1999) (same). Indeed, phone call logs in the possession ofa phone company are the "papers" or "effects" of the phone caller, under this Court's precedents, precisely because the phone caller played the most meaningful role in "making" those records when he or she used the phone and generated the information that was automatically recorded in them. See also People v. McKunes, 124 Cal. Rptr. 126, 128 (Cal. Ct. App. 1975) (rejecting the government's argument that "the records were those of the telephone company and not of [the] defendant"). Contrary to the Governor's argument, there are myriad instances (none of them '~absurd") in which records memorializing human conduct, though not "written" or "authored" by the user, are commonly understood, and have been IO
  17. 17. judicially recognized,6 as having been "made" by the user, just as a person "makes" a fingerprint without writing or authoring. 7 As was noted in the Opening Brief, records that are outside the possession or control ofthe government (e.g., newspaper articles reporting on the Governor's press conference) are not "public records" because they are not dictation - documents "made" by the Governor - and are not maintained and kept by the government. That, however, does not change the fact that as commonly understood, the Governor makes a recording or writing that contains his spoken 6 See Br. of Amici Curiae in Supp. of Denver Post Corp. & K. Crummy at 22-24 (collecting authorities from other jurisdictions holding that metadata in government records, including e-mails, are public records); see also O'Neill v. City ofShoreline, 240 P.3d 1149, 1153-54 (Wash. 2010) ("Metadata may contain information that relates to the conduct ofgovernment and is important for the public to know."). 7 See, e.g., Fred Galves, Christine Galves, Ensuring The Admissibility Of Electronic Forensic Evidence And Enhancing Its Probative Value At Trial 19-SPG Crim. Just. 37, 38 (2004) ("As we use computers, personal digital assistants, cell phones, and other devices ... we are placing into electronic form private, sensitive, and even incriminating information .... This electronic trail can serve as powerful legal evidence against a suspected criminal, as it reveals highly probative '"digital fingerprints'"); Larry Dignan, Digital Fingerprints Led Feds to Zazi: Investigators Followed a Digital Path to Track Down the Incriminating Evidence on Suspected Terrorist, CBS News, available at http://www.cbsnews.com/stories/2009/09/25/ tech/main5339112.shtml; Preston Sparks, Cell phones aid in solving crime, Augusta Chronicle, Jan. 12, 2009, http://chronicle.augusta.com/stories/2009/0l/12/ met 507344. 11
  18. 18. remarks even when he does not personally write, compose, or author the written transcription ofhis State ofthe State address. The Governor suggests that when a customer asks a pizza maker to include pepperoni, the customer does not thereby "make" the pizza. (Answer Br. at 31.) A more apt analogy (admittedly outside the realm ofrecord-making) would be ifthe customer not only specifies the type ofpizza she wants, but she provides the pizza maker with all the ingredients (pepperoni, dough, sauce, spices, and cheese). The pizza maker uses his own oven and manual labor to prepare and cook the pizza, (as the phone company uses its equipment to generate the billing statements) but the pizza could not be "made" without essential ingredients provided by the customer, who would, in that scenario, be considered a participant in "making" the pizza. In the present case, by analogy, the phone company is incapable of generating the itemized call logs without necessary information conveyed to it by the Governor and thereafter incorporated into the record. Just as the pizza ingredient provider above can be said to have played a necessary role in "making" the pizza, the Governor, too, played a necessary role in "making" the call log po1tion ofthe records at issue. 12
  19. 19. The fact that the Governor "made" the records at issue, and did so while acting in his official capacity, is a sufficient ground to render the itemized call logs "likely public records." CASES DECIDED UNDER THE FEDERAL FOIA ARE INAPPOSITE The Governor cites several cases decided under the federal Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), which determined that certain telephone records were not "agency records," but instead were records ofthe individual public employees. (Answer Br. at 15-17.) The Colorado Open Records Act, §§ 24-72-20I, et seq., C.R.S. (20 I0) (HCORA"), defines "public records" decidedly differently and more broadly (both textually and as interpreted by the courts) than the language and judicial definition given to the undefined term, "age~cy records," in the federal Freedom ofInformation Act.8 For example, to qualify as an "agency record" under FOIA, a document must have been actually "used" by an agency, Bureau ofNational Affairs v. DOJ, 742 F.2d 1484, 1492, 8 See Freedom Newspapers, Inc. v. Tollefson, 961P.2d1150, 1155 (Colo. App. 1998) (because texts ofFOIA and CORA differ, "we decline to consider federal case law interpreting FOIA as being persuasive [in interpreting CORA provision regarding personnel files]"); see also Colonial Bank v. Colo. Fin. Serv. Bd., 961P.2d579, 583 (Colo. App. 1998) (holding that federal law is not persuasive where text ofstate and federal statutes are significantly different). 13
  20. 20. 1494 (D.C. Cir. 1984),9 whereas a "public record" under CORA (or the companion Colorado Criminal Justice Records Act, or "CCJRA," §§ 24-72-301, et seq., C.R.S. (2008)) must only have been "made, maintained or kept" by any governmental employee acting in an official capacity, "for use in" the exercise of functions authorized by law or administrative rule. See, e.g., Harris, 123 P.3d at 1169 (holding that private writings ofColumbine High School killers were ''criminal justice records" when seized by the sheriff"for use in" the criminal investigation). Similarly, unlike the federal FOIA statute, the CORA does not limit the definition of"public records" to documents that were shared with and used by agency employees other than the individual government official who "made, maintained, or kept" the documents "for use" in his own exercise ofofficial functions. 10 See Wick Commc 'ns Co. v. Montrose County Bd. ofCounty Comm 'rs, 9 See also Bloomberg L.P. v. SEC, 357 F. Supp. 2d 156, 167 (D.D.C. 2004) (same). 10 But see Bureau ofNat 'I Affairs v. DOJ, 742 F.2d 1484, 1496 (D.C. Cir. 1984) (holding that documents that were actually used in the exercise ofofficial functions by one agency employee but were not shared with other "agency employees" were not "agency records"); Sibille v. Fed. Reserve Bank, 770 F. Supp. 134, 137-39 (S.D.N.Y. 1991) (same). 14
  21. 21. 81P.3d360, 364 (Colo. 2003) ('4 if[the custodian] holds the documents in his official capacity ... then the document is clearly a public record."). 11 The Governor's citation to the Maryland Court ofAppeals case of Office of the Governor v. Washington Post Co., 759 A.2d 249 (Md. App. 2000), where the court held that the governor's telephone call logs for his home telephones were not public records, is clearly inapposite. In that case, the telephone in question was a home telephone, used by the gove1nor and all members ofhis family for private business. In this case, the telephone is used exclusively by the Governor, and by the Governor's admission is used almost exclusively for conducting public business. (FAC,, 22 CD 166; Stipulations_of_Fact {44 Stip."). ~ 3, CD 123.) THE ALLEGATIONS OF THE COMPLAINT AND FIRST AMENDED COMPLAINT SHOW THAT THE GOVERNOR "KEPT" THE RECORDS IN HIS OFFICIAL CAPACITY The Governor labels as 4'pure speculation" The Post's specifically pleaded allegations that the Hpersonal" cell phone used by the Governor is a ''flat-rate" plan, and that the Governor has continued to hold those bills long after he has paid them. (See FAC ~~ 23, 27, CD 166; Compl. ~ 16, CD 5; Stip. ~ 7, CD 124.) 11 But see Ryan v. DOJ, 617 F.2d 781 (D.C. Cir. 1980) (holding that documents in the control of, and for use by, the Attorney General are "agency records" ofthe Department ofJustice, even ifthey were not shared with other agency employees); Summers v. DOJ, 934 F. Supp. 458 (D.D.C. 1996) (telephone records, message slips, and appointment calendars offormer FBI director are 4 'agency records." . 15
  22. 22. Taking these pleaded allegations as true, it is not "pure speculation" that the Governor must hold those records for some reason other than to effect payment of amounts owed to the phone company. It is neither "speculation" nor "conjecture" to allege, based upon these facts, and in light ofcommon experience ofall phone users in the modem era, that the Governor holds on to ("keeps") these detailed phone logs for the purpose ofdetermining with whom he spoke and on what occasion.12 Indeed, this Court has previously recognized that the data contained on such "toll logs" makes such a use self-evident, and can, in certain circumstances, give rise to inferences as to the content ofthose conversations. (See Opening Br. at 21 &n.18.) Moreover, the use that these records serve, for purposes ofdetermining with whom the Governor spoke about public business on which occasion, is anything but speculative, in light ofthe specific and well-pleaded allegations contained in the FAC: The Post had already asked the Governor to produce records which 12 In an unusually contorted sentence, the Governor's counsel declares that this argument must be rejected because "nothing in Wick [Commc'ns Co. v. Montrose County Bd. ofCounty Comm 'rs, 81 P.3d 360 (Colo. 2003)] authorizes this Court to deconstruct the Governor's stated intention without any additional facts." (Answer at 34.) The record shows that as of October 13, 2008, the Governor has used the records in issue only to pay the accompanying bill. (Stip. ii 7, CD 124.) Nowhere in the record does the Governor state why he keeps call logs before or after the bills are paid. Nor has the Governor ever suggested any reason for keeping them after payment other than as a record of telephone calls made in his official capacity. 16
  23. 23. would shed light on particular conversations the Governor was reported to have had with particular individuals, on particular matters ofpublic business, on particular occasions. (See FAC ~if 29, 30, CD 166-167.) In order to resolve those questions (as well as others that routinely arise in the course ofa governor's administration) concerning conversations the Governor may, or may not, have had with particular, identified individuals,13 the Governor would necessarily and unavoidably need to consult with the itemized call logs to determine whether he did in fact speak with any individuals on the occasions specified. Indeed, this is the very reason why federal law requires telephone service providers to maintain copies ofall toll records of subscribers for eighteen months, even after payment has been received for such calls. See 47 C.F.R. § 42.6 (2009). As with any record ofofficial conduct (including the log ofvisitors to the Governor's Office, which the Governor admits is a public record even if made and kept by a private building management firm (Answer Br. at 46)), it cannot be predicted in advance when or why it will be confronted with a question, issue, or controversy that the record could answer. But when a question does arise over 13 Another obvious example was raised by the litigation concerning the termination by the University ofColorado ofProfessor Ward Churchill. In that case, former Governor Bill Owens acknowledged having spoken to CU President Betsy Hoffman about Churchill. But ifGovernor Owens had categorically denied having had any such contacts, his phone bills showing calls during the relevant time period would be a crucial means to substantiate or refute that assertion. 17
  24. 24. who the Governor spoke to by telephone and when, consultation of the record is a virtual certainty. When the existence, date, and duration ofa conversation between two telephone numbers is in issue, that inevitably prompts the question, "what do the telephone records say?" Under CORA, the opportunity to be informed by that record should not be available only to the Governor, at his convenience; it also belongs to the public. The Governor provides the Court with highly selective dictionary definitions ofthe preposition "for" and the noun "use" and distills them (in combination) to mean actual use or "indicia ofuse" (the meaning ofthe term "indicia of use" is never explained) in the exercise of official functions, and not encompassing the concepts of"related to" or "inherent utility." (Answer Br. at 35.) Webster's New Twentieth Century Dictionary (unabridged, 2d ed.) defines the preposition "for" as including ~'in favor of," "suitable to," "in the direction of," "with reference or regard to," "in expectation of," "in quest of," among other definitions that illustrate that the word "for" is one of the most versatile words in the English language.14 So too, dictionaries ascribe an equally broad range ofmeanings to the noun "use." See Webster's New Twentieth Century Dictionary (defining the noun "use" as "the 14 The Oxford American Desk Dictionary (1998) contains similar synonyms for the word "for," including "in the interest or to the benefit of," "suitable or appropriate to," "regarding," "in the hope or quest of." 18
  25. 25. power or ability to use/' "the need, opportunity, or occasion to use/' "the quality that makes a thing useful or suitable for a given purpose"); Oxford American Desk Dictionary (definitions of"usen include Hability to be used," "purpose for which a thing can be used"). The Governor asserts that the definition of''public records'' was significantly "narrowed" in the process ofdrafting the original Open Records Act, (see Opening Br. at 25-26), but the Governor acknowledges that the definition targets "those records directly related to functions ofgovernment," (Answer Br. at 36). See Denver Publ'g Co., 121 P.3d at 191.15 Here, under the facts alleged in the FAC, the records at issue - detailed call logs identifying with whom the Governor spoke about public business on which occasion and for what duration - unquestionably meet that definition. THE COURT NEED ONLY CONSIDER THE CONTEXT, NOT THE CONTENT OF THE RECORDS The Governor contends that The Post seeks to ignore the context in which the records were created, and thereby "The Post asks the Court to effectively overrule Wick and Denver Publishing Co." (Answer Br. at 43.) To the contrary, it 15 Notably, one ofthe principal authorities upon which the Governor relies, Downing v. Brown, 3 Colo. 571 (1877) (see Answer at 38-39), was later explained to be a case involving only ''a personal book kept by a probate judge ... which contained records not germane to his office." People v. Trujillo, 521 P.2d 769, 770 (Colo. 1974). 19
  26. 26. is the Governor who wishes to overlook the holdings of those cases, and urges this Court to ignore the only issue presented herein: in which capacity did the Governor make and keep the records at issue (irrespective ofthe "for use" question).16 See Denver Publ'g Co., 121 P.3d at 199 (holding that the requesting party's burden to show that "the records at issue are likely 'public records"' is "met if it can be shown that the records are 'made, maintained, or kept' in a public capacity"). Once that burden has been met, as here, the Court's focus then (and only then) shifts to the content ofthe records, to dete1mine whether they were "made, maintained, or kept/or use" in the exercise ofofficial functions. Id. In Denver Publishing Co., the court looked at the content ofthe e-mail messages exchanged by the public officials therein precisely because there was no contested issue concerning the "public capacity" burden on the records requester: "Here, the messages were 'maintained or kept' by Arapahoe County. As such, a closer inquiry into the content ofthe message is required to determine if the messages 16 The Governor acknowledges that the "capacity" inquiry under Wick and Denver Publishing "balances the public's interest in access to information about how its government operates against privacy interests of public officials and employees." (Answer Br. at 10 (quoting the Court of Appeals opinion in Denver Post Corp. v. Ritter, 230 P.3d 1238, 1240 (Colo. App. 2009)).) Yet the Governor makes no attempt to refute The Post's demonstration (Opening Br. at 26-29) that no interests protected in those cases are implicated here, because the record in question is unquestionably a record ofofficial conduct. 20
  27. 27. were 'for use in the exercise of[official] functions ..."' Id. 17 Similarly, here, the factual allegations ofthe Complaint and FAC establish that the Governor both "made" and "kept" the phone records at issue while acting in his official capacity. Thus, without reaching the content ofthe records, the Court must hold that The Denver Post has met its "threshold burden" ofshowing the records are "likely public records." Moreover, in discussing the legislative history, the Governor ignores the Public Records Report which stated that a public official has a "duty, to keep" any "written record ofthe transactions ofa public officer in his office," and that "when kept [by such officer), it becomes a public document that belongs to the office rather than to the officer." (See Opening Br. at 34 (citing Pub. Records Report at 7).) Under this definition, the Governor has a duty to "keep" all records that "memorial[ize]," and serve as "a written record ofthe transactions of' his office. And, because he has done so, the records are deemed to be "kept" by his office, not by him individually. Thus, as in Denver Publishing Co., the records at issue are kept by the pubIic entity and the "official capacity" requirement is satisfied. 17 Similarly, in Harris v. Denver Post Corp., 123 P.3d 1166, 1172 (Colo. 2005), the Court determined that the Columbine killers' journals were "kept" by SheriffStone in his official capacity without need to consider the contents ofthose writings. 21
  28. 28. The Governor's attempt to distinguish e-mail archives (Answer Br. at 47), from the records at issue is disingenuous and unavailing. According to the Governor, e-mail archives are "usually maintained on the State's computer system." Id. However, the Governor has acknowledged that e-mails discussing public business, that are maintained exclusively on his personal server and/or personal messaging device, are nevertheless "public records." (See Gov._Ritter's_Reply in_Further_Support_of_his_Mot._to_Dismiss n.l, CD 99.) Thus, it is not the location ofthe communications on the government computer system that determines its character; ifa record is sent or received "in furtherance of, or pertaining to his or her duties as an elected official, then it falls within the definition" ofa public record. Denver Publ'g Co., 121 P.3d at 200-01. THE PREDICTED "PARADE OF HORRIBLES" WILL NOT MATERIALIZE The rule that a substantial nexus between a record and official conduct renders the record subject to CORA will not result in the "parade of horribles" imagined by the Governor and amicus the Colorado Municipal League. The application ofthat rule will produce results consistent with the letter and purpose of CORA when applied to the phone records associated with the Governor's (or any public employee's) home phone (or any other truly "personal" phone line). (See Answer Br. at 48 (suggesting this would be the most horrible ofall the 22
  29. 29. "parade ofhorribles").) In such a scenario - where almost any public employee will make an occasional or infrequent use ofa home or "personal" phone to discuss public business (much as the airport manager did in his personal diary in Wick Communications}-a court can readily determinefrom that context alone,18 that such records (as a whole} are not Hlikely public records." The infrequent, passing reference to conduct ofpublic business does not convert an otherwise private record into a public one. Here, the undisputed facts lie at the polar opposite extreme: the State's ChiefExecutive has conceded that he has used the phone at issue to conduct 100% ofthe cellular telephone conversations he's had in his official capacity as Governor. Surely the law, and the judges ofthis state applying it, are capable ofdrawing such distinctions. CONCLUSION For the foregoing reasons, the judgment ofthe Court of Appeals should be reversed, and the case remanded to the trial court for the Governor to meet his . burden of showing that the telephone call logs in issue are not public records. 18 An exception would be an employee who works at home instead ofgoing to an office. 23
  30. 30. "' .,,.).. Respectfully submitted this _rJ-._3_ day ofDecember, 20I0. 24 By~]:~Thomas B. Kelley, #1971 Steven D. Zansberg, #26634 Christopher P. Beall, #28536 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. 1888 She1man Street, Suite 370 Denver, Colorado 80203 Telephone No.: (303) 376-2400 Facsimile No.: (303) 376-2401 tkelley@lskslaw.com szansberg@lskslaw.com cbeall@lskslaw.com Attorneys for Plaintiffs/Petitioners, THE DENVER POST CORPORATION and KAREN CRUMMY
  31. 31. CERTIFICATE OF SERVICE I hereby certify that on this ~W. day of December, 2010, a true and correct copy ofthe foregoing Petitioner's Reply Briefwas served on the following counsel via U.S. Mail, postage prepaid: JOHN W. SUTHERS, Attorney General MAURICE G. KNAIZER, Deputy Attorney General 1525 Sherman Street, 7th Floor Denver, CO 80203 Rachel L. Allen, Esq. Colorado Municipal League I 144 Sherman St. Denver, CO 80203 Mark D. Flink, Esq. Baker & Hostetler LLP 303E. 17thAve.,#1100 Denver, CO 80203 Lucy A. Dalglish, Esq. Mark R. Caramanica, Esq. The Reporters Committee for Freedom of the Press 110I Wilson Blvd., # 1100 Arlington, VA 22202 25

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