CORA/CCJRA UPDATE
ESPIOC
February 12, 2015
Mary Dulacki
Records Coordinator, Office of the Executive
Director of Safety, City and County of Denver
CORA or CCJRA?
Colorado Open Records Act
(CORA) CRS 24-72-201, et.seq.
Criminal Justice Records Act
(CCJRA) CRS 24-72-301, et.seq.
 “Public Records” means and
 “Criminal Justice Records” means
includes all writings made,
maintained, or kept by…[a]
political subdivision of the
state…and held by any localgovernment-financed entity for use
in the exercise of functions
required or authorized by law or
administrative rule or involving the
receipt or expenditure of public
funds.
materials made, maintained or kept
by any criminal justice agency in
the state for use in the exercise of
functions required or authorized by
law or administrative rule
“Public Record” (CORA)
Record must be for use in the performance of public functions
or involve the receipt of public funds
CRS 24-72-202(6)(A)(I)
WHAT IS THE REASON THE RECORD IS KEPT?
Not a public record if maintained in private capacity-Private Diary
-Email received in furtherance of personal relationship even on publicly
owned equipment. (Denver Publishing Co. v. County Comm. of Arapahoe)
-Personal cell phone used for public business -not “made, maintained, or
kept” in official capacity (Ritter v. Denver Post)
-merely because a record is made during tenure as public official does
not render it a public record (Wick Communications v. Montrose)
Not a “Public Record”
 Criminal Justice Records
 “Work Product” – deliberative, pre-decisional materials that
express an opinion assembled for the benefit of an elected
official (Drafts)
 Communication between a constituent and an elected official
that “clearly implies by its nature or content” that it is
expected to be confidential
CRS 24-72-202
CORA PROHIBITED RELEASES
 Medical, mental health, sociological, scholastic information
 Personnel files – NARROWLY DEFINED
 Letters of Reference
 Trade secrets, privileged information and confidential
commercial information (Responses to RFPs)
 Records of sexual harassment complaints/investigations
 Deliberative Process Privilege (Candid discussion that would
stifle honest and frank discussion and impair govt. function)
 Contrary to any other state statute, federal law or court rule
(HIPAA, attorney/client privilege)
CRS 24-72-204(3)(a)
Personnel Files
CRS 24-72-202(4.5)
“means and includes home
addresses, telephone
numbers, financial
information, and other
information maintained
because of the employeremployee relationship and
other documents
specifically exempt from
disclosure”
“does not include
applications of past or
current employees,
employment agreements,
any amount paid or benefit
provided incident to
termination of
employment, performance
ratings…or any
compensation…”
Denial of Personnel Information
Explain basis for denial
If not specifically enumerated
in statute, be prepared to
identify the basis for denial
Example: pre-decisional
administrative leave
Sample Language
the information requested is
maintained because of the
employer-employee
relationship that would be
detrimental to the employee
and the public interest to
disclose. Your request is
therefore denied pursuant to
CRS 24-72-204(3)(a)(II)(A)
and 204(6)(a)
Criminal Justice Records
 “Criminal Justice Agency” performs any activity directly related to
the detection or investigation of crime; the apprehension, pretrial
release, posttrial release, prosecution, correctional supervision,
rehabilitation, evaluation, or treatment of accused persons or
criminal offenders; or criminal identification activities or the
collection, storage or dissemination of arrest and criminal records
information
 “Official Action” arrest; indictment; charging by information;
disposition; pretrial or posttrial release from custody; judicial
determination of mental or physical condition; decision to grant
order, or terminate probation, parole, or participation in
correctional or rehabilitative programs; and any decision to
formally discipline, reclassify, or relocate any person under
criminal sentence.
Release of Criminal Justice Records
 Mandatory Release
 Records of Official Action
 Prohibited Release
 Contrary to Statute or Court Order
 Discretionary Release
 Subject to Balancing Test weighing Harris factors
 Deny if contrary to public interest
MUST DISCLOSE
“Official Actions”
 Fact of arrest, date and place
 Name
 DOB
 Last Known Address
 Sex
 Charges
 Disposition
 Fact adult is on probation, terms and conditions
CRS 24-72-303; 24-72-302(7)
DO NOT DISCLOSE
 Sexual Assault Information CRS 24-72-304(4)
Name and identifying information of victim
 Juvenile Records
Reports of child abuse or neglect and name and address of
any child of family or other identifying information shall be
confidential and shall not be public information CRS 191-307
Law enforcement records concerning juvenile are
confidential and shall not be open to the public CRS 191-304(2)(a)
Name, DOB, address (no mugshot) if charged with listed
serious crimes CRS 19-1-304(5)
DO NOT DISCLOSE
 Name & address of at risk adult CRS 26-3.1-102(7)(a)
 Mental Health Holds CRS 27-65-121
 Detox CRS 27-81-111
 Medical Marijuana Registry CRS 18-18-406.3
 Sex Offender Registration Form CRS 16-22-109(4)
 Social Security Numbers USCA 405(C)(2)(C)(vii)(I)
 Privileged matters (attorney/client)
DO NOT DISCLOSE
 Sealed Records CRS 24-72-702 (Effective August 1, 2014)
Removes from public access – available to criminal
justice agencies, courts
“No Such Records Exists”
How do you seal social media posts?
Maintain record of post
Maintain record of removal
DISCRETIONARY DISCLOSURES
If the record sought is not a record of official action
and its disclosure is not prohibited,
then the disclosure is discretionary and
can be denied where the custodian believes the disclosure
would be contrary to the public interest.
CRS 24-72-305(5)
THE BALANCING TEST
Pursuant to Harris v. Denver Post, 123, P.3d 116 (Colo. 2005), the
following factors are weighed to determine whether a record
should be released or withheld:
 The privacy interests of individuals who may be impacted by
disclosure;
 The agency’s interest in keeping confidential information
confidential;
 The agency’s interest in the integrity of on-going investigations;
 The public purpose to be served in allowing disclosure of the
record;
 Any other pertinent considerations relevant to the circumstances
of the particular records request, including whether disclosure
would be contrary to the public interest.
Application of the Balancing Test
 Every formal CCJRA request must be subject to a case by
case analysis
 You cannot have a per se rule about the release of a records
subject to a discretionary disclosure
 You must articulate the fact that you have weighed the public
and private interests associated with release of the records
Criminal Justice Records Subject to
Discretionary Disclosure
 Case Files, reports
Will release compromise investigation/prosecution? Reveal
confidential information, operational details?
 911 Calls
 Booking Photos—see 24-72-305.5
 Operational Plans
 Crime Scene Photos
 Internal Affairs Investigations
 Video from BodyCams, Dash Cams or Surveillance Cams
Internal Affairs Investigations
 Law enforcement disciplinary records are governed by
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CCJRA, not CORA
Subject to the balancing of Harris factors
Public has an interest in knowing how public employees are
disciplined
If the investigation relates to duty-related conduct and is not
of a personal and private nature, public has an interest
Open investigation/case?
BODY CAM VIDEO
 Establish policy regarding access, retention, requests for
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video
Video is a criminal justice record
Discretionary disclosure – balance the Harris factors
Consider privacy interests of those captured on videonot always in public
Retain pursuant to period for associated type of offense or
case (IAB); non-events should be retained for very short
period (30 days)
CORA FEES
 CORA ---effective July 1,2014, staff time may be charged at
a rate not to exceed $30 per hour, with no charge for the
first hour of time for research and retrieval of records
 But may charge fee only if published or posted on website
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CRS 24-72-205(6)
May require advance payment
May charge for manipulating data
.25 per page
No fees related to transmission may be charged if emailed
CCJRA FEES
 “Criminal justice agencies may assess reasonable fees, not to
exceed actual costs, including but not limited to personnel
and equipment, for the search, retrieval and redaction of
criminal justice records requested pursuant to this part 3 and
may waive fees at their discretion. In addition, criminal justice
agencies may charge a fee not to exceed twenty-five cents per
standard page for a copy of a criminal justice record or a fee
not to exceed the actual cost of providing a copy,,,”
CRS 24-72-306(1)
 Should your fee structure mimic CORA guidelines?