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Colorado’s Open Records Law: Your Rights to Colorado Criminal Records and Other Information

SUNSHINE LAWS PUBLIC / PRESS GUIDE TO COLORADO LAWS ON
OPEN MEETINGS & OPEN RECORDS

There is a LEGISLATIVE POLICY in favor of OPEN RECORDS:

It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times.

WHAT ARE PUBLIC RECORDS? All “writings” made, maintained, or kept by the state or any agency, institution or political subdivision for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. Records of foundations of public institutions of higher education are public records

COLORADO PUBLIC RECORDS LAW (24-72-201)

Police and court records are found in the Criminal Justice Records Act. “Writings” includes photographs, tapes, recording, digitally stored data including electronic mail and other documentary materials in addition to books, papers and maps but does not
include computer software.

EXCEPTIONS: The custodian of public records must allow
any person to inspect any record unless:

1. State statutes have closed it;

2. Federal law forbids it;

3. The Supreme Court or a state court has closed the record.

WHEN CUSTODIAN MAY DENY ACCESS:

The custodian has the discretion to close the following records on the ground that disclosure to the applicant would be contrary to public interest:

1. Records of Investigations conducted by any sheriff, prosecuting attorney, or police department, any records of the intelligence information or security procedures of these same officials,
or any investigatory files compiled for any other law enforcement purpose. (Also in Criminal Justice Act)

2. Test questions on licensing, employment or academic exams, but scores are available to person in interest.

3. Details of research being conducted by a state institution or on proposed legislation by legislative staff or Governor.

4. Real estate appraisals until title is transferred.

5. Certain information generated by the bid analysis and management system of the Department of Transportation.

6. Identifying information in Motor Vehicle license records.

7. Specialized details of security arrangements or investigations

WHEN CUSTODIAN MUST DENY ACCESS:
The custodian must deny inspections of the following records:

1. Medical, psychological, sociological and scholastic achievement data. A coroner’s report is open. Scholastic information is available on finalists for executive positions. Marriage license
applications are closed, but marriage licenses are public records.

2. Personnel files. Personnel files include only: home addresses, phone numbers, financial information, and other similar private information maintained because of employer employee
relationship and documents exempt in other statutes, i.e. letters of reference.

What is specifically not in the file and therefore open:

Applications of past and current employees. Employment agreements. Any amount paid or benefit provided incident to termination of employment. Performance ratings (with school
limitations). Salaries, including expense allowances, benefits. Final sabbatical reports required by law.

3. Letters of reference.

4. Trade secrets, privileged information and confidential commercial, financial, geological, or geophysical data furnished by or obtained from any person.
 
5. Library and museum material contributed by private persons if they so request.

6. Addresses and telephone numbers of public school children, except to recruiting officers as decided locally.

7. Library records disclosing identity of a user.

8. Health data furnished to Health Data Commission.
9. Addresses, phone numbers and personal financial information of past or present users of public utilities, public facilities or recreational or cultural services owned and operated by the
state, its agencies, institutions or political subdivisions. Includes golf courses, ice skating rinks, etc.

10. Sexual harassment complaints and investigations under any General Assembly policy unless released by person in interest (complainant or person charged).

12. Motor vehicle records (other than traffic accident reports) are closed, except for certain specified uses, which does not include the press.

REQUESTED CLOSURE:

Candidates for executive positions (college president, city manager, superintendent of schools, etc.) may request in writing that their applications be kept confidential; however, names
of all the finalists must be disclosed. When three or fewer candidates are under consideration, they are finalists. No appointment may be made less than 14 days after finalists are named.
Information submitted by finalists become public records.

E-MAIL IS “CORRESPONDENCE”

“Public Records” correspondence does not include:

• “Work Product” prepared for elected officials unless the official releases it;
• Correspondence not connected to official duties not involving public funds;
• Message from a constituent to an elected official or vice versa that clearly implies expectation of confidentiality.

“Work Product” includes:

Deliberative materials assembled to assist elected officials in reaching a decision, such as background information or drafts of documents expressing a decision; Drafts of bills or amendments; Research by legislative council for legislator and identified as proposed legislation. Member can request final product remain work product; otherwise it becomes public record.

“Work Product” does not include:

Final versions of documents expressing official’s decision; fiscal or performance audit reports on public entity management or expenditure of public funds, or final financial reports; Materials distributed in a public meeting or identified in text of a document that expresses a decision;
Documents which consist solely of factual information compiled from public sources including comparisons of existing laws, etc., in other jurisdictions or compilations of existing public
information, statistics or data or explanations of general areas
of law or policy.

NOTE: Official custodian must consult with elected official to determine if correspondence is public record.

TRADEMARK AND COPYRIGHT. Governmental entities can now get trademark and copyright protection for public records; however, this cannot restrict public access or fair use of copyrighted materials and does not apply to writings which are “merely lists or other compilations.”

COST OF PUBLIC RECORDS: Copies may be made of any public record at a cost of not more than $1.25 per page; however, an additional “reasonable fee” may be charged for:

1. Special requests for data in a form not required as a record. Requester may have to pay costs to manipulate the data. Subsequent requesters to pay same as first.
2. Use of a computer program other than word processing if necessary to provide a record. Fee for a copy can recover costs of the system; however, this may be waived for public purposes,
including journalists, nonprofits and academic research.
3. Records “not readily available” must be provided within three working days, unless custodian in writing declares there are “extenuating circumstances,” such as number of documents
required. This extends access time to seven days.

DELIBERATIVE PROCESS:

Deliberative process may legally exist if “material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government.” A records custodian
asserting this privilege must produce an affidavit so declaring. In cases where a member of the public believes the privilege has been misapplied, the custodian of the record must apply to district court for permission to restrict disclosure. Records discussed in public meetings or used for discussion in public meetings can NOT be protected under the deliberative process
exemption.

WHAT TO DO IF ACCESS IS DENIED:

Write a letter to the custodian asking for an answer in writing as to the reason access was denied. The custodian must answer within three working days. If the reason is not deemed adequate, request for inspection may be made to district court, with hearing to be held “at the earliest practical time.” Three days’ notice must begiven to the records custodian before the suit is filed in order to recover attorneys’ fees, if successful. The custodian must prove that it would be injurious to the public interest to open the
record.

PENALTY:

Anyone who willfully and knowingly violates the provisions can be found guilty of a misdemeanor. The fine is set at $100 and/or imprisonment of 90 days. If a court finds the
document was withheld improperly, custodian may personally be ordered to pay petitioner’s court costs.

THE CRIMINAL JUSTICE RECORDS ACT

LEGISLATIVE POLICY:

Criminal justice agencies shall maintain records of official actions and such records shall be open to inspection by any person and that all other records of criminal justice agencies in this state may be open for inspection.

WHAT AGENCIES ARE INVOLVED:

Any court with criminal jurisdiction and any law enforcement agency in counties, cities, home rule cities, governing boards of institutions of high education, school districts, special districts or authorities which investigate crime or work with those convicted of crimes.

OFFICIAL ACTIONS INCLUDE:

Arrest, indictment, or other formal filing of charges; agency taking action; date and place
action taken; name, birth date, last-known address, physical description, sex of accused; charges brought or offenses alleged; disposition, including decision not to file criminal charges after
arrest, conviction, acquittal, acquittal by reason of insanity; dismissal, abandonment, or indefinite postponement; formal diversion from prosecution; sentencing; correctional supervision;
release from supervision with terms and conditions.

Other Criminal Justice records may be open unless:

1. Inspection prohibited by state statute.

2. Inspection prohibited by Supreme Court or other court
order.

3. Custodian believes disclosure would be “contrary to public interest” because an investigation is still in progress by law enforcement personnel, sheriff, district attorney; intelligence information, security procedures and investigatory files compiled for any other law enforcement purpose.

4. Sexual assault cases are to be stamped “Sexual Assault” and the name of the victim is to be deleted from the files before their release.

Name of accused is public record.

Ethical Rules of Attorneys: The ethical rules governing attorneys and prosecutors (Rules 3.6 and 3.8) restrict attorneys and law enforcement agents associated with an investigation from making “extrajudicial statements” to the press that have “a substantial
likelihood of materially prejudicing an adjudicative proceeding.”

However, these rule do not limit the disclosure of “records of officials actions” which the statute declares are required to be disclosed. Also, these rules arguably do not apply to disclosure of even discretionary-release records (the Comment to the rule expresses concern only with the “commentary of a lawyer” who is involved in a proceeding and recognizes “that the public value of informed commentary is great”).

In any case, in exercising discretion to release pre-arrest/investigatory records, prosecutors should be advised under the ethical rules to withhold only information that poses a substantial likelihood of prejudice to a prosecution that is in progress or likely to be commenced in the reasonably near future.

INFORMATION NOT FOR PROFIT:

Custodian must deny access to records to anyone who wishes to use them in a business
venture. A signed statement may be necessary.

SEALING OF RECORDS:

Records of persons who were not officially charged, had charges dismissed, were acquitted or
arrest records of a person who pled to a lesser charge may be sealed by the court if the person involved requests it. This does not include traffic offenses or sexual assault cases where the
defendant is convicted, pleads guilty or nolo contendere. A court may seal criminal records, except personal identifying information, fifteen years after the final disposition of criminal
proceedings if the person involved requests it and has not been charged with any crime for at least fifteen years.

IF ACCESS IS DENIED:

 An individual may request a written statement of the grounds for denial of access and an answer
must be produced within three working days citing the law or regulation and the general nature of the public interest which needs to be protected. An appeal may be made to district court
with a hearing at “the earliest practical time.”

FEES FOR COPIES:

Criminal justice agencies may charge reasonable fees, not to exceed actual costs, or may waive fees.

PENALTY:

If a court finds the denial was arbitrary or capricious, it may order the custodian to pay court costs and attorney fees, and, in addition, can add a penalty of up to $25 for each
day access was improperly denied to be paid to the applicant. Violation is also punishable as a misdemeanor.

The public can be excluded from juvenile hearings if the court determines it is in the best interest of the juvenile or the community to close them. Names of juveniles in misdemeanor, custody, and abuse cases are not open to the public.

ACCESS TO JUVENILE RECORDS:

Arrest and criminal records information of juveniles charged with a crime that would be a felony if committed by an adult, involves a weapon, or non-felony traffic citation or who has been adjudicated a juvenile delinquent or is subject to revocation of probation for possession of a hand gun are public record. Other juvenile cases are closed unless the case is transferred to district court where the juvenile will be tried as an adult or the juvenile is a runaway
from a correctional facility. {19-1-119(1)(b.5)}

CHILD ABUSE RECORDS

are confidential unless the child dies and a criminal charge is filed, and family’s name is available
if arrested or formal charges filed { 19-1-120(1)(b)}.Names of adult perpetrators charged with a crime are NOT confidential.

THE ENTIRE JUVENILE OPEN RECORDS LAW IS REPRINTED HERE

19-1-304. Colorado Juvenile Delinquency Records.

(1) (a) Court records – open. Except as provided in paragraph (b.5) of this subsection (1), court records in juvenile delinquency proceedings or proceedings concerning a juvenile charged with the violation of any municipal ordinance except a traffic ordinance shall be open to inspection to the following persons without court order:
 
(I) The juvenile named in said record;
(II) The juvenile’s parent, guardian, or legal custodian;
(III) Any attorney of record;
(IV) The juvenile’s guardian ad litem;
(V) The juvenile probation department and the adult probation department for purposes of a presentence investigation and the preparation of a presentence report as described in section 16-11-102 (1) (a), C.R.S.;
(VI) Any agency to which legal custody of the juvenile has been transferred;
(VII) Any law enforcement agency or police department in the state of Colorado;
(VII.5) The Colorado bureau of investigation for purposes of conducting a criminal background investigation relating to authorization of a firearm purchase;
(VIII) A court which has jurisdiction over a juvenile or domestic action in which the juvenile is named;
(IX) Any attorney of record in a juvenile or domestic action in which the juvenile is named;

(X) The state department of human services;
(XI) Any person conducting an evaluation pursuant to section 14-10-127, C.R.S.;
(XII) All members of a child protection team;

(XIII) Any person or agency for research purposes, if all of the following conditions are met:

(A) The person or agency conducting such research is employed by the state of Colorado or is under contract with the state of Colorado and is authorized by the department of human services to conduct such research; and

(B) The person or agency conducting the research ensures that all documents containing identifying information are maintained in secure locations and access to such documents by unauthorized persons is prohibited; that no identifying information is included in documents generated from the research conducted; and that all identifying information is deleted from documents used in the research when the research is completed;
 
(XIV) The victim and the complaining party, if different, identified in the court file;
(XV) The department of corrections for aid in determinations of recommended treatment, visitation approval, and supervised conditions;
(XVI) The principal, or the principal’s designee, of a school in which the juvenile is or will be enrolled as a student and, if the student is or will be enrolled in a public school, to the superintendent of the school district in which the student is or will be enrolled, or such superintendent’s designee;
 
(XVII) The department of education when acting pursuant section 22-2-119, C.R.S., or pursuant to the “Colorado Educator Licensing Act of 1991”, article 60.5 of title 22, C.R.S.

(b) Court records – limited. With consent of the court, records of court proceedings in delinquency cases may be inspected by any other person having a legitimate interest in the proceedings.

(b.5) Arrest and criminal records – certain juveniles – public access – information limited. The public has access to arrest and criminal records information, as defined in section 24-72-302 (1), C.R.S., and including a person’s physical description, that:

(I) Is in the custody of the investigating law enforcement agency, the agency responsible for filing a petition against the juvenile, and the court; and
 
(II) Concerns a juvenile who:

(A) Is adjudicated a juvenile delinquent or is subject to a revocation of probation for committing the crime of possession of a handgun by a juvenile or for committing an act that would constitute a class 1, 2, 3, or 4 felony or would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult; or

(B) Is charged with the commission of any act described in sub-subparagraph (A) of this subparagraph (II).

(b.7) The information which shall be open to the public pursuant to paragraph (b.5) regarding a juvenile who is charged with the commission of a delinquent act shall not include records of investigation as such records are described in section 24-72-305 (5), C.R.S. In addition, any psychological profile of any such juvenile, any intelligence test results for any such juvenile, or any information regarding whether such juvenile has been sexually abused shall not be open to the public unless released by an order of the court.

(b.8) The court shall report the final disposition concerning a juvenile who has been adjudicated a juvenile delinquent to the Colorado bureau of investigation in a form that is electronically consistent with applicable law. The report shall be made within seventy-two hours after the final disposition; except that the time period shall not include Saturdays, Sundays, or legal holidays. The report shall include the information provided to the court in accordance with paragraph

(b.7) of this subsection (1), the disposition of each charge, and the court case number, and the Colorado bureau of investigation shall reflect any change of status but shall not delete or eliminate information concerning the original charge.

(c) Probation records – limited access. Except as otherwise authorized by section 19-1-303, a juvenile probation officer’s records, whether or not part of the court file, shall not be open to inspection except as provided in subparagraphs (I) to (XI) of this paragraph (c):

(I) To persons who have the consent of the court;

(II) To law enforcement officers, as defined in section 19-1-103 (72), and to fire investigators, as defined in section

19-1-103 (51). The inspection shall be limited to the following information:

(A) Basic identification information as defined in section 24-72-302 (2), C.R.S.;
(B) Details of the offense and delinquent acts charged;
(C) Restitution information;
(D) Juvenile record;
(E) Probation officer’s assessment and recommendations;
(F) Conviction or plea and plea agreement, if any;
(G) Sentencing information; and
(H) Summary of behavior while the juvenile was in detention, if any;

(II.5) To the Colorado bureau of investigation for purposes of conducting a criminal background investigation relating to authorization of a firearm purchase. The inspection shall be limited to the information identified in sub-subparagraphs

(A) to (H) of subparagraph (II) of this paragraph (c).
 
(III) To a court which has jurisdiction over a juvenile or domestic action in which the juvenile is named;
(IV) To any attorney of record in a juvenile or domestic action in which the juvenile is named;
(V) To the state department of human services;
(VI) To any person conducting an evaluation pursuant to section 14-10-127, C.R.S.;
(VII) To all members of a child protection team;
(VIII) To the juvenile’s parent, guardian, or legal custodian;
(IX) To the juvenile’s guardian ad litem;
(X) To the principal of a school, or such principal’s designee, in which the juvenile is or will be enrolled as a student and, if the student is or will be enrolled in a public school, to the superintendent of the school district in which the student is or will be enrolled, or such superintendent’s designee; or
(XI) To the department of education when acting pursuant to section 22-2-119, C.R.S., or pursuant to the “Colorado Educator Licensing Act of 1991”, article 60.5 of title 22, C.R.S.

(d) Social and clinical studies – closed – court authorization. Except as otherwise authorized by section 19-1-303, any social and clinical studies, whether or not part of the court file, shall not be open to inspection except by consent of the court.

(2) (a) Law enforcement records in general – closed. Except as otherwise provided by paragraph (b.5) of subsection (1) of this section and otherwise authorized by section 19-1-303, the records of law enforcement officers concerning juveniles, including identifying information, shall be identified as juvenile records and shall not be inspected by or disclosed to the public, except:

(I) To the juvenile and the juvenile’s parent, guardian, or legal custodian;

(II) To other law enforcement agencies and to fire investigators, as defined in section 19-1-103 (51), who have a legitimate need for such information;
 
(II.5) To the Colorado bureau of investigation for purposes of conducting a criminal background investigation relating to authorization of a firearm purchase;

(III) To the victim and the complaining party, if different, in each case after authorization by the district attorney or prosecuting attorney;
(IV) When the juvenile has escaped from an institution to which such juvenile has been committed;
(V) When the court orders that the juvenile be tried as an adult criminal;
(VI) When there has been an adult criminal conviction and a presentence investigation has been ordered by the court;
(VII) By order of the court;
(VIII) To a court which has jurisdiction over a juvenile or domestic action in which the juvenile is named;
(IX) To any attorney of record in a juvenile or domestic action in which the juvenile is named;
(X) To the state department of human services;
(XI) To any person conducting an evaluation pursuant to section 14-10-127, C.R.S.;
(XII) To all members of a child protection team;
(XIII) To the juvenile’s guardian ad litem;

(XIV) To any person or agency for research purposes, if all of the following conditions are met:

(A) The person or agency conducting such research is employed by the state of Colorado or is under contract with the state of Colorado and is authorized by the department of human services to conduct such research; and

(B) The person or agency conducting the research ensures that all documents containing identifying information are maintained in secure locations and access to such documents by unauthorized persons is prohibited; that no identifying information is included in documents generated from the research conducted; and that all identifying information is deleted from documents used in the research when the research is completed;

(XV) To the principal of a school, or such principal’s designee, in which the juvenile is or will be enrolled as a student and, if the student is or will be enrolled in a public school, to the superintendent of the school district in which the student is or will be enrolled, or such superintendent’s designee;

(XVI) To assessment centers for children;

(XVII) To the department of education when acting pursuant to section 22-2-119, C.R.S., or pursuant to the “Colorado Educator Licensing Act of 1991”, article 60.5 of title 22, C.R.S.

(b) The fingerprints, photograph, name, address, and other identifying information regarding a juvenile may be transmitted to the Colorado bureau of investigation to assist in any apprehension or investigation and for purposes of conducting a criminal background investigation relating to authorization of a firearm purchase.

(2.5) Parole records. Parole records shall be open to inspection by the principal of a school, or such principal’s designee, in which the juvenile is or will be enrolled as a student and, if the student is or will be enrolled in a public school, by the superintendent of the school district in which the student is or will be enrolled, or such superintendent’s designee. Parole records shall also be open to inspection by assessment centers for children.

(3) Prior to adjudication, the defense counsel, the district attorney, the prosecuting attorney, or any other party with consent of the court shall have access to records of any proceedings pursuant to this title, except as provided in section 19-1-309, which involve a juvenile against whom criminal or delinquency charges have been filed. No new criminal or delinquency charges against such juvenile shall be brought based upon information gained initially or solely from such examination of records.

(4) For the purpose of making recommendations concerning sentencing after an adjudication of delinquency, the defense counsel and the district attorney or prosecuting attorney shall have access to records of any proceedings involving the adjudicated juvenile pursuant to this title, except as provided in sections 19-1-307, 19-1-308, and 19-1-309. No new criminal or delinquency charges against the adjudicated juvenile shall be brought based upon information gained initially or solely from such examination of records.

(5) Direct filings – arrest and criminal records open. Whenever a petition filed in juvenile court alleges that a juvenile between the ages of twelve to eighteen years has committed an offense that would constitute unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S., or a crime of violence, as defined in section 18-1.3-406, C.R.S., if committed by an adult or whenever charges filed in district court allege that a juvenile has committed such an offense, then the arrest and criminal records information, as defined in section 24-72-302 (1), C.R.S., and including a juvenile’s physical description, concerning such juvenile shall be made available to the public. The information is available only from the investigative law enforcement agency, the agency responsible for filing a petition, and the court, and shall not include records of investigation as such records are described in section 24-72-305 (5), C.R.S. Basic identification information, as defined in section 24-72-302 (2), C.R.S., along with the details of the alleged delinquent act or offense, shall be provided immediately to the school district in which the juvenile is enrolled. Such information shall be used by the board of education for purposes of section 22-33-105 (5), C.R.S., but information made available to the school district and not otherwise available to the public shall remain confidential.

(5.5) Whenever a petition is filed in juvenile court involving a felony or a class 1 misdemeanor or the following offenses of any degree: Menacing, in violation of section 18-3-206, C.R.S.; harassment, in violation of section 18-9-111, C.R.S.; fourth degree arson, in violation of section 18-4-105, C.R.S.; theft, in violation of section 18-4-401, C.R.S.; aggravated motor vehicle theft, in violation of section 18-4-409, C.R.S.; criminal mischief, in violation of section 18-4-501, C.R.S.; defacing property, in violation of section 18-4-509, C.R.S.; disorderly conduct, in violation of section 18-9-106, C.R.S.; hazing, in violation of section 18-9-124, C.R.S.; or possession of a handgun by a juvenile, in violation of section 18-12-108.5, C.R.S., the prosecuting attorney, within three working days after the petition is filed, shall make good faith reasonable efforts to notify the principal of the school in which the juvenile is enrolled and shall provide such principal with the arrest and criminal records information, as defined in section 24-72-302 (1), C.R.S. In the event the prosecuting attorney, in good faith, is not able to either identify the school which the juvenile attends or contact the principal of the juvenile’s school, then the prosecuting attorney shall contact the superintendent of the juvenile’s school district.

(6) The department of human services shall release to the committing court, the district attorney, the Colorado bureau of investigation, and local law enforcement agencies basic identification information as defined in section 24-72-302 (2), C.R.S., concerning any juvenile released or released to parole supervision or any juvenile who escapes.

(7) In addition to the persons who have access to court records pursuant to paragraph (a) of subsection (1) of this section, statewide electronic read-only access to the name index and register of actions of the judicial department shall be allowed to the following agencies or attorneys appointed by the court:

(a) County departments, as defined in section 19-1-103 (32), and attorneys who represent the county departments as county attorneys, as defined in section 19-1-103 (31.5), as it relates to the attorneys’ work representing the county;

(b) The office of the state public defender, created in section 21-1-101, C.R.S.;

(c) Guardians ad litem under contract with the office of the child’s representative, created in section 13-91-104, C.R.S., or authorized by the office of the child’s representative to act as a guardian ad litem, as it relates to a case in which they are appointed by the court;

(d) Attorneys under contract with the office of the alternate defense counsel, created in section 21-2-101, C.R.S., as it relates to a case in which they are appointed by the court; and

(e) Respondent parent counsel appointed by the court and paid by the judicial department as it relates to a case in which they are appointed by the court.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
DTC Quadrant Building
5445 DTC Parkway, Penthouse 4
Greenwood Village, Colorado, 80111
Primary Web Site:  http://www.HMichaelSteinberg.com
Colorado Criminal Law Blog:  www.Colorado-Criminal-Lawyer-Online.com
Main:  303.627.7777
Cell:  720.220.2277
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