The document is a petitioners' reply brief filed in the Colorado Supreme Court in the case of Denver Post Corp. and Karen Crummy v. Bill Ritter, Governor of Colorado. The brief argues that the Court of Appeals erred in dismissing the plaintiffs' public records request for cell phone records documenting calls made by the Governor in his official capacity. Specifically, the brief asserts that (1) the allegations in the plaintiffs' amended complaint must be accepted as true, (2) the plaintiffs met their burden to show the records were made and kept by the Governor in his official role, and (3) the terms "made" and "kept" in the public records law should be interpreted broadly, not narrowly as the Governor argues

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. "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. "' .,,.)..
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. 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