Denver Post Corp. v. Ritter
255 P.3d 1083
| Colo. | 2011Background
- Denver Post sought Governor Ritter's personal cell phone bills under CORA; district court dismissed for failure to state a claim.
- Governor had two phones: a state-issued BlackBerry and a personal cell phone; the state did not reimburse personal phone charges.
- Personal bills listed date, time, numbers, rate, duration, and charges for ~10,000 calls but no content or names; content not included.
- Stipulation: Governor kept and used the personal bills solely to pay them; no reimbursement to state; no other state official kept or used the bills.
- Most business calls occurred on the Governor's personal phone; the governor confirmed the bills were in his possession, custody, or control.
- Court of Appeals affirmed dismissal; Supreme Court granted certiorari to consider CORA’s definition and application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Governor Ritter's personal cell phone bills public records under CORA? | Crummy alleges the bills are writings made/maintained for public use. | Ritter asserts the bills were not made/maintained/kept by him in official capacity and thus not public records. | No; bills not shown to be made/maintained/kept in official capacity. |
| Did the Post plausibly allege that Ritter made, maintained, or kept the bills in his official capacity? | The bills are byproduct of official conduct and kept for official use or potential use in accountability. | Allegations show passive receipt/payment; no official creation/maintenance or official use shown. | Plaintiff failed to plead facts showing official creation/maintenance/keeping. |
| If the custodian is a public official, who bears the burden to show the records are public? | Burden shifts to Governor if records could be public; records kept in official capacity. | Burden remains with plaintiff to show likely public records; records not shown to be kept officially. | Plaintiff did not meet the initial burden; records not shown to be likely public records. |
Key Cases Cited
- Wick Communications Co. v. Montrose County Bd. of County Commissioners, 81 P.3d 360 (Colo. 2003) (public records must be kept or maintained in official capacity)
- Denver Publishing Co. v. Board of County Commissioners, 121 P.3d 190 (Colo. 2005) ("for use" standard; demonstrates public records must relate to official functions)
- Denver Post Corp. v. Ritter, 230 P.3d 1238 (Colo. App. 2009) (court of appeals holding that personal billings were not public records)