The Colorado Supreme Court recently held that the Denver Post could not obtain records from the personal cell phone of former Colorado Governor Bill Ritter.  Denver Post Corp. v. Ritter, —P.3d —, 2011 WL 2449325 (Colo. 2011).  The Court found that the newspaper did not clearly state a claim that the cell phone bills were public records under the Colorado Open Records Act (“CORA”).

Governor Ritter had a practice of using two cell phones. The first phone was a state-paid Blackberry, which Ritter used almost exclusively for email. The Governor paid for the second phone, which he used for both personal calls and calls he made in his role as Governor.

In 2008, the Denver Post sued Ritter, seeking access to the private cell phone bills, arguing that they were public records under CORA.  The Post asserted that the bills would reveal valuable information about the workings of the state government. CORA defines public records as “writings made, maintained or kept by the state … for use in the exercise of functions required or authorized by law.” § 24-72-202 (6)(a)(I), C.R.S. (2010).  The newspaper claimed that the records met the statutory definition because the former Governor used his personal phone “in the exercise of functions required or authorized by law” and that the phone bills were “made” as a by-product of Ritter’s phone use.  The Post also argued that Ritter was attempting to privatize his conduct by using a private, personal account, and that this was an unacceptable “loophole” in the requirements of CORA.  Slip-Op. at 6.

A majority of the Justices of the Colorado Supreme Court denied the Denver Post’s request, finding that the newspaper’s complaint failed to state a claim that the former Governor’s personal cell phone billing statements were actually public records under CORA.  The Court found that the Post’s complaint was conclusory and did not allege facts demonstrating that Ritter “made”, “maintained” or “kept” his personal cell phone billing records in his official capacity as Governor.  The Court was simply unconvinced by the Post’s efforts to fit the cell phone bills into the statutory definition of a public record.  As such, the Post’s action failed.  Two Justices dissented, opining that the phone bills were, in fact, public records under CORA. These justices noted their concerns that public officials not use “efficiency and convenience as an excuse to shield records of their official conduct from the citizens on whose behalf they serve.”  Slip-Op. at 15.

The Washington State Supreme Court has also addressed a public official’s use of private technology in the context of public records.  In O’Neill v. City of Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010), the Court authorized a search of a government official’s personal computer to locate an email (complete with original metadata).  A councilmember had used her personal computer to transact city business.  While there was no question under Washington’s Public Records Act that the email message in O’Neill was a public record, the Court ventured into new territory by allowing the requestor access to a personal, non-government device.  In dicta, the Court explained that the ruling was justified by the Court’s concern for the integrity of the Washington Public Records Act: “We note that this inspection is appropriate only because [the government official] used her personal computer for city business. If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.” 170 Wn.2d at 150.  For more information on this topic, see our prior blog posts on O’Neill v. City of Shoreline and Mechling v. City of Monroe.