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Sexy E-Mails Between County Workers Not 'Public Records' Under Colo. Law

A Colorado county official and a public employee who used the county's e-mail and text-pager systems to exchange 600 messages, most of them sexually explicit, have convinced the state Supreme Court that not all of those messages were "public records" subject to disclosure.

The justices concluded that not all of the messages exchanged met the definition of "public records" in the Colorado Open Records Act. Because two lower courts had disagreed about whether all of the messages could be made public under CORA, the Supreme Court remanded the case for reconsideration.

The e-mails between Arapahoe County Clerk Tracy Baker and Assistant Chief Deputy Clerk Leesa Sale, who allegedly were involved in an extramarital sexual relationship, became an issue when the county launched an investigation into allegations of sexual harassment, hostile work environment, constructive discharge and other misconduct in the county clerk's office.

The probe yielded an extensive report from a private investigator hired by the county. As part of his supporting documentation, the investigator cited more than 600 e-mails exchanged by Baker and Sale, many with sexually explicit content, according to court records.

The Board of County Commissioners released the report to the public, but redacted the contents of the sexually explicit messages and held back the sub-report on sexual harassment and hostile environment.

Not satisfied with the redacted version of the report, the Rocky Mountain News and other media outlets submitted written requests to the board asking that all of the electronic communications sent or received by Baker for a 33-month period be disclosed under CORA.

The board refused to release the non-redacted version of the report and sought a judicial determination of whether the requested items could be disclosed under CORA or were protected by the constitutional right to privacy.

The trial court found that the messages were public records within the scope of CORA and not subject to any exemptions. It also determined that Baker and Sale had no expectation of privacy in the messages.

Baker and Sale appealed and the Colorado Court of Appeals reversed the order of the trial court.

The state Supreme Court granted review on the issue of whether the mandated disclosure of the e-mails under CORA is barred by the constitutional privacy rights of Baker and Sale.

In a unanimous decision, the justices concluded that neither of the two lower courts correctly interpreted or applied the definition of "public records" in CORA because the statute does not require that e-mail messages be disclosed in full or not at all.

The high court first looked at the plain language of CORA and noted that the definition of "public records" includes writings kept by a political subdivision of the state for use in its administrative function and applies even to correspondence of public officials if it is connected to the operation of the subdivision. The court concluded that, with respect to e-mails, only those that relate to the performance of public functions can be considered "public records" under CORA.

When determining if an e-mail can be considered a public record, the inquiry must be "content-driven," the court explained. Here, although the messages exchanged by Baker and Sale were "kept or maintained" by Arapahoe County, they lacked the "demonstrable connection" to the exercise of public duties to make them public records under CORA, the justices found.

The court rejected the Rocky Mountain News' argument that the e-mails at issue were "public records" as defined by CORA because Baker and Sale had a "direct work relationship" and this was sufficient to link the messages to Baker's duties as an elected official. The justices emphasized again that the inquiry is content-driven and that there are some private and personal communications in those e-mails that are never intended to be public.

"The only discernable purpose of disclosing the content of these messages is to shed light on the extent of Baker and Sale's fluency with sexually explicit terminology and to satisfy the prurient interests of the press and public," the high court said.

The justices reversed the appellate court's interpretation and application of the "public records" definition under CORA and remanded with instructions to return the case to the trial court. The justices specified that the court must redact those messages that do not address the performance of public functions.