ASNE joins amicus brief in Colorado open-records case

The Denver Post is seeking access to a list of nonpersonal phone calls made by Colorado Governor Bill Ritter. The Ritter Administration claims the calls are exempt from the state's public records law since they were made on the governor's personal cell phone, and a lower court agreed. Earlier this month, ASNE joined 10 other media organizations in an amicus brief filed in the Colorado Supreme Court supporting the Post's position that the lower court ruling would open a huge hole in the state's Open Records Act.

By Kevin Goldberg

RESTON, Va. — ASNE joined ten media organizations and companies on an amicus brieffiled earlier this month in the Colorado Supreme Court in the case of Denver Post Co. and Karen Crummy v. Bill Ritter. The Post is seeking access to the list of nonpersonal phone calls made during business hours by Colorado Governor Bill Ritter on his personal cell phone. The request was denied, with the Governor's office claiming that the list was not a government record. Although the Ritter administration admits that state business may have been conducted during the calls, they argue that since the logs were generated and maintained by an outside party (i.e., the cell phone carrier) they are exempt from the state's public records law.

The denial was upheld by a lower court in Colorado. The Post appealed the decision, fearing that the lower court ruling would allow state officials to skirt the law by conducting state business on their personal cell phones and email accounts.

The Reporters Committee for Freedom of the Press drafted the amicus. In addition to ASNE, the Associated Press, the Association of Capitol Reporters and Editors, the Colorado Freedom of Information Council, the Colorado Press Association, the E.W. Scripps Company, Gannett Co., the Newspaper Association of America, the Radio Television Digital News Association and the Society of Professional Journalists joined the brief.

The brief makes three major arguments. First, it notes the obvious: That the lower court ruling would allow public officials to circumvent the Colorado Open Records Act simply by using personal communication devices. The brief notes that the Ritter case is not an isolated instance. Several important stories -- often involving government corruption or misuse of public funds -- have been published regarding public officials who initially evaded detection by going outside the government's communications systems. The brief forcefully argues that the lower court's blessing would lead to increased use of personal mobile phones, personal email accounts and even instant messaging services, to avoid public scrutiny.

The brief's second section explains that mobile-phone logs are often used by investigative reporters covering government corruption. The brief describes how reporters can use mobile-phone records to confirm whether or not an official has engaged in particular conduct or spoken with specific individuals.

Finally, the brief parrots the Post's primary argument -- that a “public record” as defined by the Colorado Open Records Act includes anything made, maintained or kept by a government official in their official capacity.

Oral arguments in the case are scheduled for this fall.

Kevin Goldberg is a lawyer for Fletcher, Heald & Hildreth and is the legal counsel to ASNE. You can find him blogging on CommLawBlog, published by his firm.

Denver Post Amicus Brief(PDF)

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