Marks v. Koch
284 P.3d 118
Colo. Ct. App.2011Background
- Marks seeks CORA access to 2544 TIFF digital copies of ballots from Aspen's May 2009 mayoral election, created for the city's IRV system.
- TIFF files were processed by TrueBallot, Inc. and used to generate raw/clean data strings to determine election winners.
- Clerk assisted in tabulation and did not prevent public display/broadcast of TIFF files; discrepancies between manual tallies and TIIf data were later revealed.
- Clerk disclosed the discrepancy nine days after learning of it, past the deadline to contest the election; Marks obtained a preliminary injunction to preserve TIFFs and ballots.
- Clerk denied CORA requests claiming TIFFs are ballots and protected by secrecy in voting and ballot-storage statutes; district court dismissed for failure to state a claim.
- On appeal, the court reverses and remands, holding TIFFs are public records subject to CORA with narrow voter-identity privacy exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are TIFFs public records under CORA? | Marks seeks release of TIFFs not protected by secrecy. | Koch argues TIFFs are ballots and protected by secrecy and storage laws. | TIFFs are public records subject to CORA; secrecy applies only to identity/identifying content. |
| Do secrecy in voting provisions bar TIFF release? | Secrecy protects only voter identity and identifying ballot content, not ballot content itself. | Secrecy extends to preventing disclosure of ballot content. | Secrecy in voting protects identity; content not identifying may be disclosed. |
| Are TIFFs “ballots” under the ballot storage/destruction statute? | TIFFs are not ballots because they were created after voting and were publicly displayed. | TIFFs are ballots under the statute's broad wording and thus require retention. | TIFFs are not ballots; the storage/destruction statute does not exempt them from CORA disclosure. |
| Does CORA override or conflict with the ballot-storage/destruction provisions? | CORA should allow access absent statutory exemptions; TIFFs should be released. | Statutes on ballots/storage override CORA's reach. | CORA authorizes release; TIFFs not ballots, and storage provisions do not bar release. |
Key Cases Cited
- Ritter v. Jones, 207 P.3d 954 (Colo.App.2009) (content-based CORA disclosure exceptions should be narrowly construed)
- Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo.App.1998) (CORA disclosure exceptions narrowly construed)
- Foiles v. Whittman, 233 P.3d 697 (Colo.2010) (interpret related provisions as a whole to ascertain legislative intent)
- Danielson v. Dennis, 139 P.3d 688 (Colo.2006) (read constitution provisions in light of plain meaning and whole text)