Harris v. Denver Post.

Controversies

The problem with the court's decision to seal the tapes from public inspection is that the Sheriff obtained the tapes pursuant to a valid search warrant and used the tapes to investigate crimes connected with the Columbine shooting. They were also used to prepare the JCSO final report. This should have made them criminal justice records under CCJRA. Read more about this case from caselaw.findlaw.com.

The final argument that successfully sealed the 'Basement Tapes' from public view was as follows:

• That the court of appeals erred in holding that private documents seized from a home pursuant to search warrant are public records.
• Private Records Seized pursuant to a warrant are neither public records as defined by CORA nor criminal justice records under CJRA.
• Law enforcement agencies seizing private records pursuant to a search warrant have no property rights in the seized records.
• Finding seized documents to be public records threatens centuries of carefully crafted Fourth Amendment protections.
• The court of appeals misinterpreted CORA and the CCJRA when it ruled that police investigative files are public records governed by CORA and not criminal justice records governed by the CCJRA.

Harris v. Denver Post

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Harris v. Denver Post Case Documents

HARRIS V. DENVER POST
Docket Item	Document Links
"No more briefs"/folder is full	Page 01
Colorado Supreme Court Order Granting Substitution (27 September 2004) Colorado Supreme Court allows substitution of Ted Mink for Russ Cook as the named party in the role of “Sheriff of Jefferson County, Colorado.”	Page 02, Page 03
Russ Cook & JCSO’s Motion for Substitution Pursuant to Colorado Appellate Rule 43(c) (23 September 2004) Russ Cook and JCSO move the Colorado Supreme Court to take Russ Cook’s name off the lawsuit as the named party in the role of “Sheriff of Jefferson County, Colorado” because Ted Mink took over the role from Russ Cook.	Page 04, Page 05, Page 06, Page 07
CSC Order for Extension of Time to File Opposition to Petition (21 September 2004) Colorado Supreme Court extends the time for Denver Post to file its joint opposition to all petitions for writ of certiorari.	Page 08, Page 09
Unopposed Motion by Respondent for Extension of Time to File Opposition to Petition (20 September 2004) Denver Post moves the Court for an extension of time in which to file its joint opposition to all petitions for writ of certiorari (petitions that would ask the Colorado Supreme Court to review the decision of the Colorado Court of Appeals in Denver Post v. Cook that the tapes are subject to inspection at the discretion of JCSO, pursuant to the Colorado Criminal Justice Records Act. The Harris’ had already filed their petition, and it was anticipated that other parties would file their own petitions as well.	Page 10, Page 11, Page 12, Page 13
JCSO’s Petition for Writ of Certiorari to Colorado Supreme Court (with appendices A thru D) (23 September 2004) Argument A: "The Court of Appeals erred in holding that private documents seized from a home pursuant to a search warrant are public records." Argument B: "The Court of Appeals misinterpreted CORA and the CJRA when it ruled that police investigative files are public records governed by CORA and not criminal justice records governed by the CJRA."	Page 14, Page 15, Page 16, Page 17, Page 18, Page 19, Page 20, Page 21, Page 22, Page 23, Page 24, Page 25, Page 26, Page 27, Page 28, Page 29, Page 30, Page 31, Page 32, Page 33, Page 34, Page 35, Page 36, Page 37, Page 38, Page 39, Page 40, Page 41, Page 42, Page 43, Page 44, Page 45, Page 46, Page 47, Page 48, Page 49, Page 50 Page 51, Page 52, Page 53, Page 54, Page 55, Page 56, Page 57, Page 58, Page 59, Page 60, Page 61, Page 62, Page 63, Page 64, Page 65, Page 66, Page 67, Page 68, Page 69, Page 70, Page 71, Page 72, Page 73, Page 74, Page 75, Page 76, Page 77, Page 78, Page 79, Page 80, Page 81, Page 82, Page 83, Page 84, Page 85, Page 86, Page 87, Page 88, Page 89, Page 90, Page 91, Page 92, Page 93, Page 94, Page 95, Page 96, Page 97, Page 98, Page 99, Page 100 Page 101, Page 102, Page 103, Page 104, Page 105, Page 106, Page 107, Page 108, Page 109, Page 110, Page 111, Page 112, Page 113, Page 114, Page 115, Page 116, Page 117, Page 118, Page 119, Page 120, Page 121, Page 122, Page 123, Page 124, Page 125, Page 126, Page 127, Page 128, Page 129, Page 130, Page 131, Page 132, Page 133, Page 134, Page 135, Page 136, Page 137, Page 138, Page 139, Page 140, Page 141, Page 142, Page 143, Page 144, Page 145, Page 146, Page 147, Page 148, Page 149, Page 150 Page 151, Page 152, Page 153, Page 154, Page 155, Page 156, Page 157, Page 158, Page 159, Page 160, Page 161, Page 162, Page 163, Page 164, Page 165, Page 166, Page 167, Page 168
Entry of Appearance (23 September 2004) Jefferson County Attorney William Tuthill and Assistant County Attorneys Lily Oeffler and Writer Mott are letting the Court know they intend to represent Petitioners Russ Cook and JCSO.	Page 169, Page 170, Page 171
Cover letter from County Attorneys’ Office to Colorado Supreme Court accompanying Jeffco’s Petition for Writ of Certiorari, Jefferson County Attorneys’ Entry of Appearance, and Motion for Substitution (23 September 2004)	Page 172
Harris’ Petition for Writ of Certiorari to Colorado Supreme Court (10 September 2004) Argument 1: "Private personal property, documentary or otherwise, seized from a private home as part of a criminal investigation does not, by virtue of such seizure, become a 'criminal justice record' or a 'public record.'"	Page 173, Page 174, Page 175, Page 176, Page 177, Page 178, Page 179, Page 180, Page 181, Page 182, Page 183, Page 184, Page 185, Page 186, Page 187, Page 188, Page 189, Page 190, Page 191, Page 192, Page 193, Page 194, Page 195, Page 196, Page 197, Page 198, Page 199, Page 200 Page 201, Page 202, Page 203, Page 204, Page 205, Page 206, Page 207, Page 208, Page 209, Page 210, Page 211, Page 212, Page 213, Page 214, Page 215, Page 216, Page 217, Page 218, Page 219, Page 220, Page 221, Page 222, Page 223, Page 224, Page 225, Page 226, Page 227, Page 228, Page 229, Page 230, Page 231, Page 232, Page 233, Page 234, Page 235, Page 236, Page 237, Page 238, Page 239, Page 240, Page 241, Page 242, Page 243, Page 244, Page 245, Page 246, Page 247, Page 248, Page 249, Page 250 Page 251, Page 252, Page 253, Page 254, Page 255, Page 256, Page 257, Page 258, Page 259, Page 260, Page 261, Page 262, Page 263, Page 264, Page 265, Page 266, Page 267, Page 268, Page 269, Page 270, Page 271, Page 272, Page 273, Page 274, Page 275, Page 276, Page 277, Page 278, Page 279, Page 280, Page 281, Page 282, Page 283, Page 284, Page 285, Page 286, Page 287, Page 288, Page 289, Page 290, Page 291, Page 292, Page 293, Page 294, Page 295, Page 296, Page 297
Entry of Appearance (10 September 2004) The Harris’ attorneys are letting the Court know they intend to represent Respondents Wayne and Katherine Harris.	Page 298, Page 299, Page 300
Order for Extension of Time to File Petition for Writ of Certiorari (12 March 2004) Colorado Supreme Court orders that Harris’ have up to 30 days after the Court of Appeals rules on Denver Post’s Petition for to file their Petition for Writ of Certiorari.	Page 301, Page 302
Harris’ Unopposed Motion for Extension of Time to File Petition for Writ of Certiorari (8 March 2004) The Harris’ want to ensure they have enough time to file a Petition for Writ of Certiorari in the Colorado Supreme Court. The appellate rules make it unclear whether their deadline would be 30 days after the deadline for filing a petition for rehearing (which would be filed by the losing party in the COA; the Denver Post in this case), or 30 days after the Colorado Supreme Court denies the petition for rehearing.	Page 303, Page 304, Page 305, Page 306, Page 307
Harris’ Entry of Appearance for Purposes of Filing Unopposed Motion for Extension of Time to File Petition for Writ of Certiorari Pursuant to Colorado Appellate Rule 56 (8 March 2004) Attorney Steven Greenlee is letting the Colorado Supreme Court know that he will be the one to file a motion for extension of time for the Harris’ to file their Petition for Writ of Certiorari.	Page 308, Page 309, Page 310
"No more briefs"/folder is full	Page 311
Petitioners’ Jefferson County Sheriff’s Office Department and Jefferson County Sheriff Theodore Mink’s Opening Brief with Appendices 1-5 (4 March 2004) Argument A: "Private documents seized pursuant to a search warrant are neither open records nor criminal justice records." Argument B: "The Court of Appeals erred in holding that police investigative files are public records governed by CORA instead of criminal justice records governed by CJRA."	Page 312, Page 313, Page 314, Page 315, Page 316, Page 317, Page 318, Page 319, Page 320, Page 321, Page 322, Page 323, Page 324, Page 325, Page 326, Page 327, Page 328, Page 329, Page 330, Page 331, Page 332, Page 333, Page 334, Page 335, Page 336, Page 337, Page 338, Page 339, Page 340, Page 341, Page 342, Page 343, Page 344, Page 345, Page 346, Page 347, Page 348, Page 349, Page 350 Page 351, Page 352, Page 353, Page 354, Page 355, Page 356, Page 357, Page 358, Page 359, Page 360, Page 361, Page 362, Page 363, Page 364, Page 365, Page 366, Page 367, Page 368, Page 369, Page 370, Page 371, Page 372, Page 373, Page 374, Page 375, Page 376, Page 377, Page 378, Page 379, Page 380, Page 381, Page 382, Page 383, Page 384, Page 385, Page 386, Page 387, Page 388, Page 389, Page 390, Page 391, Page 392, Page 393, Page 394, Page 395, Page 396, Page 397, Page 398, Page 399, Page 400 Page 401, Page 402, Page 403, Page 404, Page 405, Page 406, Page 407, Page 408, Page 409, Page 410, Page 411, Page 412, Page 413, Page 414, Page 415, Page 416, Page 417, Page 418, Page 419, Page 420, Page 421, Page 422, Page 423, Page 424, Page 425, Page 426, Page 427, Page 428, Page 429, Page 430, Page 431
Order for Extension of Time to File Opening Briefs (17 February 2005) Argument A: "Private documents seized pursuant to a search warrant are neither open records nor criminal justice records." Colorado Supreme Court grants extension of time to both Harris’ and Klebolds to file their briefs.	Page 432, Page 433
Petitioners Thomas and Susan Klebold’s Motion for Extension of Time to File Opening Brief (16 February 2005) Klebolds ask Colorado Supreme Court (Court of Appeals?) for their brief filing deadline to be extended to March 4, 2005 to match with JCSO’s.	Page 434, Page 435, Page 436
Petitioners Wayne and Katherine Harris’ Motion for Extension of Time to File Opening Brief (16 February 2005) Harris’ ask Colorado Supreme Court (Court of Appeals?) for their brief filing deadline to be extended to March 4, 2005 to match with JCSO’s.	Page 437, Page 438, Page 439
Order for Extension of Time to File Opening Brief (9 February 2005) Colorado Supreme Court grants extension of time to Petitioners JCSO to file their brief until March 4, 2005.	Page 440, Page 441
Jefferson County Petitioners’ Motion for Extension of Time to File Opening Brief (8 February 2005) JCSO’s attorneys, the Jefferson County Attorney and Assistant County Attorneys ask Colorado Supreme Court for extension of time to file opening brief. A new County Attorney was appointed and several Assistant County Attorneys had resigned, so things were hectic and more time was needed.	Page 442, Page 443, Page 444, Page 445
Court of Appeals receipt for transmission of Harris v. Denver Post COA case documents/materials to Colorado Supreme Court (18 January 2005)	Page 446
Colorado Supreme Court Order Granting Certiorari as to Issues I and II (10 January 2005) Issue I: Whether the court of appeals erred in holding that privately owned personal property seized from a private home by the government pursuant to a search warrant is a “public record” subject to the Colorado Open Records Act ("CORA"). Issue I: Whether the recordings seized from private homes by virtue of search warrants and for the purposes of criminal investigation are "criminal justice records" subject to the Colorado Criminal Justice Records Act, sections 24-72-301 to 309, C.R.S. (2004).	Page 447, Page 448, Page 449
Reply in Support of Petition for Review on Certiorari (22 October 2004) Harris’ reply in support of their own PWC after the Denver Post filed their opposition to the Harris’ PWC. Argument A: Certiorari is appropriate because the Court of Appeals’ erroneous decision will apply broadly to all written or recorded personal property seized from a private person or business in the course of a law enforcement investigation. Argument B: Certiorari is appropriate because the legislature did not intend for CORA or CCJRA to apply to private writings or recordings seized from a home or business as part of a law enforcement investigation. Argument C: Certiorari is appropriate because the private materials seized from the home of Wayne and Katherine Harris are not subject to either CORA or CCJRA.	Page 450, Page 451, Page 452, Page 453, Page 454, Page 455, Page 456, Page 457
Order Extending Time for Jefferson County to File Reply Brief (19 October 2004) New deadline of October 21, 2004.	Page 458, Page 459
Unopposed Motion for Extension of Time for Jefferson County to File Reply Brief (18 October 2004) Jefferson County Attorney William Tuthill resigned unexpectedly, so the County Attorneys needed a few more days to finalize their reply brief.	Page 460, Page 461, Page 462, Page 463
Cover letter from County Attorneys’ Office to CSC accompanying Petitioner Jefferson County Sheriff’s Department’s Reply Brief in Further Support of its Petition for Writ of Certiorari (21 October 2004)	Page 464
Petitioner Jefferson County Sheriff’s Department’s Reply Brief in Further Support of its Petition for Writ of Certiorari (21 October 2004) Argument A: The Court of Appeals’ flawed opinion has broad applications to virtually all seized documents. Argument B: The Court of Appeals’ opinion is neither supported by the statutory language of CORA nor by the Supreme Court’s decision in Wick Argument C: The statutory framework of CORA and the CJRA are distinct and documents seized by the government should properly be categorized as criminal justice records not public records.	Page 465, Page 466, Page 467, Page 468, Page 469, Page 470, Page 471, Page 472, Page 473, Page 474, Page 475, Page 476, Page 477, Page 478, Page 479
Opposition to Petitions for Certiorari (12 October 2004) Denver Post’s opposition to PWCs filed by Harris’, Klebold’s, and JCSO. Analysis A: Whatever privacy rights the Harrises and Klebolds may have with respect to disclosure of the records in question are not yet at issue in this litigation Analysis B: The statutory interpretation offered by the petitioners contradicts the plain text of Colorado’s open records laws, and was properly rejected by the Court of Appeals Analysis C: Whether disclosure of the records at issue under CORA or the CCJRA, the analysis is identical, and does not merit this Court’s review.	Page 480, Page 481, Page 482, Page 483, Page 484, Page 485, Page 486, Page 487, Page 488, Page 489, Page 490, Page 491, Page 492, Page 493, Page 494, Page 495, Page 496, Page 497
Title (date)	Page 98, Page 99, Page 100 Page 101, Page 102, Page 103, Page 104, Page 105, Page 106, Page 107, Page 108, Page 109, Page 110, Page 111, Page 112, Page 113, Page 114, Page 115, Page 116, Page 117, Page 118, Page 119, Page 120, Page 121, Page 122, Page 123, Page 124, Page 125, Page 126, Page 127, Page 128, Page 129, Page 130, Page 131, Page 132, Page 133, Page 134, Page 135, Page 136, Page 137, Page 138, Page 139, Page 140, Page 141, Page 142, Page 143, Page 144, Page 145, Page 146, Page 147, Page 148, Page 149, Page 150 Page 151, Page 152, Page 153, Page 154, Page 155, Page 156, Page 157, Page 158, Page 159, Page 160, Page 161, Page 162, Page 163, Page 164, Page 165, Page 166, Page 167, Page 168, Page 169, Page 170, Page 171, Page 172, Page 173, Page 174, Page 175, Page 176, Page 177, Page 178, Page 179, Page 180, Page 181, Page 182, Page 183, Page 184, Page 185, Page 186, Page 187, Page 188, Page 189, Page 190, Page 191, Page 192, Page 193, Page 194, Page 195, Page 196, 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Harris v. Denver Post Oral Arguments Transcript

Oral Arguments Transcript

*This is an unofficial transcript derived from video/audio recordings* Credit goes to Bill Ockham for releasing this transcript. Wayne Harris; et al., Petitioners, v. The Denver Post... Appearances: Supreme Court of Colorado. Wayne Harris; et al., Petitioners, v. The Denver Post Corporation, d/b/a the Denver Post, Respondent. No. 050913_04SC113; 04SC133. September 13, 2005. Oral Argument Lily W. Oeffler, Assistant County Attorney, for petitioners, Theodore B. Mink, III, in his capacity as Sheriff of Jefferson County and Jefferson County Sheriff's Department. C. Michael Montgomery, Denver, CO, for petitioners, Wayne Harris and Katherine Harris. Steven D. Zansberg, Faegre & Benson LLP, Denver, CO, for respondent, The Denver Post Corporation. Before: Mary Mullarkey, Chief Justice, and Gregory J. Hobbs, Jr., Alex J. Martinez, Michael L. Bender, Nancy E. Rice, Nathan B. Coats, Rebecca L. Kourlis, Justices. CONTENTS (1) ORAL ARGUMENT OF LILY W. OEFFLER ON BEHALF OF THE PETITIONER (2) ORAL ARGUMENT OF MIKE MONTGOMERY ON BEHALF OF THE PETITIONER (3) ORAL ARGUMENT OF STEVEN D. ZANSBERG ON BEHALF OF THE RESPONDENT START JUDGE: Argument in the case Harris v. Denver Post Corporation and we're ready to hear from the petitioners. ORAL ARGUMENT OF LILY W. OEFFLER ON BEHALF OF THE PETITIONER MS. OEFFLER: Good afternoon, your Honors. My name is Lily Oeffler. I'm an assistant county attorney for Jefferson County. And I'm appearing here today on behalf of the Jefferson County Sheriff, Ted Mink. The first issue I'd like to touch on today is less complex than some of those that are before the Court this afternoon, but no less important, especially to law enforcement agencies all over the state. And that is the release of criminal investigations must be analyzed under the CJRA and not, as the Court of Appeals has decided, under CORA. Criminal justice agencies must have the the discretion and flexibility to decide if, and when, to release their investigations. In its opinion, the Court of Appeals focused on the records of criminal investigations at CORA at 24-72-204-2(a), and special privacy concerns, it believes were not included in the CJRA. And it decided--the Court of Appeals, decided that CORA best governs the release of criminal investigations, not the CJRA. This finding is contradicted by the basic structure of the CJRA, specific language in the CJRA, and past case laws. JUDGE: For the benefit of our audience, let's say that CORA is the Colorado Open Records Act and CJRA is the Colorado – MS. OEFFLER: -Criminal Justice Records Act. JUDGE: Criminal Justice, okay. MS. OEFFLER: Thank you, your Honor. The CJRA deals with the two specific types of law enforcement records. The first is records of official actions. These records are arrest, indictment, sentencing and these are records over which the custodian has no discretion; they must be released. The second type of records are those which may be released in accordance with specific criteria. From a practical stand, if investigations-- if criminal investigations were not considered part of this category by the legislature, I would be hard-pressed to come up with the reason as to why the legislature ever established this category in the first place. It is also in this category that specific language in the CJRA becomes important. Because among the documents, the custodian has discretion not to release are, quote: records of investigation, end quote. Finally, open to this current case, the Court of Appeals has accepted almost as a given that the release of criminal investigations is governed by the CJRA, in all case law. Moving on from that, the next issue was the interphase between the Fourth Amendment and the release of documents taken pursuant to search warrant, through record statutes. There are both constitutional and highly practical problems which arise from the contention that mere possession of a record by a governmental entity could turn a private document into a public document. Police are granted the authority to obtain a search warrant. We need police to have this ability, they need to be able to gather evidence of crimes. But in order to get that search warrant they must follow a strict protocol, and then they must convince a neutral magistrate that probable cause exists, that a crime has been committed. And that a search of that specific home will produce evidence of that crime. Then after the home is searched, a return listing all the items taken from the home must be filed with the court. Before one shred of evidence taken from that home can be used in trial against the defendant, the defendant has the right to file a motion to suppress to test the constitutionality of the search. If the court finds the search unconstitutional, the evidence does not see the light of the day in a courtroom. Courts in the past have been quick to protect the Fourth Amendment privilege against unreasonable search and seizures. Law enforcement has been told in no uncertain terms by the Court that they cannot invite the press along on the execution of a search warrant. And in fact, it is a violation of the Fourth Amendment to allow the press to come into the home to observe how that search warrant is executed. But under the Court of Appeals' interpretation, where the press could not come into the home, as soon as any documents or evidence from that same search is walked through the doors of the sheriff's office, anybody for any purpose can make a demand for its production. And again, along with the Court of Appeals' decision, the custodian could produce the documents and give out copies. No motions to suppress, no need for the document owner ever to weigh in. And no court process required at all, they simply give out copies. There's a very practical issue which I'd like to bring before the Court too. And it can't be ignored because this is an enormous burden the Court of Appeals has placed on law enforcement. The Post argues, “Don't worry, this can be considered criminal justice documents, because it's a two part test.” The custodian can always say, “No.” The custodian has the right to deny release. And certainly if one focuses only on the Columbine investigation and the Columbine investigation alone, this is very true. In that case the custodian took weeks reviewing the documents, line by line. The court in that case took weeks reviewing the documents, line by line. Certain names were redacted, medical records were redacted, bomb making information was redacted, all kinds of concerns to the general public were addressed in that case. But to understand the issue, this Court must move away from Columbine to the more conventional criminal investigation and analyze the decision in that light. In a law enforcement agency, the designation of custodian falls on the shoulder of the record supervisor, probably ninety-percent of the time. This supervisor is in charge of keeping records for all current and past investigations. Now, for example in Jefferson County in 2004, the sheriff's office worked about 5,000 active investigations, some of them were big and some of them were very small. Search warrants were used to gather evidence in many of them. This is not improbable that should this Court of Appeals decision stand that request will be made each week or each month for all documents taken pursuant to those search warrants. JUDGE: Well, let's assume that's temporary, but--a couple of scenarios here. One, if the document actually went to trial and was used by the prosecution, wouldn't it-be a public record or criminal justice record, probably better way to phrase it, at that point? MS. OEFFLER: Well, I think in that case, the record has a dual role. It's, it's a record that's relied on or used by the sheriff's office taken pursuant to search warrant. But it has a very different character at that point, because if it's used at the trial, it's already passed Fourth Amendment must off. The person-- the individual has already had the opportunity to file a motion to suppress, to argue all the constitutionality of the search and finally to, to talk about the regular evidence issues of admissibility. So I see that document as becoming very different once it hits the courtroom. JUDGE: Okay. But let then-- let's back up. In this case, these, these materials were used on whole or in part to prepare a report that was made public, correct? MS. OEFFLER: Correct. JUDGE: So how was the public going to find out whether or not that report actually-- accurately describes those matters that were deemed to be enough for public of importance that they were disclosed. What I'm saying is then, doesn't the Criminal Justice Act anticipate if, if the agency uses that in some way in a report that the whole document underlying the reports should be made public. And if not, why not? MS. OEFFLER: I don't believe so and I believe this Court has actually answered that most recently, yesterday. In a decision yesterday, this Court in the Denver Publishing Company v. Arapahoe County, took a look at records. Now, they were clearly produced by government-- individuals, an elected official and an employee of government. They were stored, they were emails or records similar to an email. They were stored on a government computer. They were then and they were made during work hours. They were then gathered by government, Arapahoe County, gathered together and they were included in an official investigation by Arapahoe County of alleged wrongdoings. And then they were included in a report by Arapahoe County as part of the investigation of that wrongdoings. Now, there were documents in that case that were created by a government official--no doubt about that, that they were stored in Arapahoe County, that they were used in a-- in an official government report and include-- in, in fact included as part of that report. And yet this Court looked at the very nature of those documents and said, “No, you have-- they weren't created for an official governmental purpose.” The same idea as this Court also found in Wick. That private diary of the, the county manager in that case was not created for a governmental purpose. Yes, he used that information to jog his memory to right up a, a, a, a document. But he didn't write his diary for a governmental purpose. Just the same in this case, these were private documents taken from a home. There were-- the document that should be released is the document that the sheriff creates or the sheriff's deputy has create which talks about this piece of evidence. Which talks about how it was used and what was done with it. First starting out with the return, and then all the investigations which deal with the specific record. From that you can see what government did as a result of reading this private document. JUDGE: Ms. Oeffler, I have a procedural question for you. The trial court concluded that the Criminal Justice Records Act did not apply, Court of Appeals ultimately concluded the same. If we should agree with you that it does, and it is the applicable statutory scheme under which this question should be addressed. What do you propose that we do? Remand? MS. OEFFLER: I propose that you find that records taken pursuant to search warrant are not records under the Criminal Justice Records Act and are not available. JUDGE: Under any circumstance? MS. OEFFLER: Yes. JUDGE: Well, you qualify that because you said in some circumstances they could become public evidence or partially public evidence on a-- in a trial. MS. OEFFLER: I did, I think-- I'm sorry, your Honor. I, I do, I do agree that should those records proceed into a courtroom and be used in the courtroom in trial, then may become a dual, a dual purpose document. They are a Court record and they are also records taken pursuant to warrant and I believe they can be released. JUDGE: But since there were no criminal proceedings here? MS. OEFFLER: They were never taken into a courtroom in that type of situation where the Fourth Amendment could be tested. JUDGE: So, so for what about the argument that, that disclosure of these materials which the sheriff should press releases but or shed light on government action or in action? MS. OEFFLER: Well, again, I think, I have to agree here with the trial court in this case which I'm, I'm not certain what action or in action these could be to could they have shown, how the sheriff or could have the sheriff-- could the sheriff have done in a preventive Columbine? Well, these were taken out-- shortly after Columbine occurs. So certainly they wouldn't upheld in deciding whether or not could Columbine have been prevented. So I'm not certain, I think the record that tells you what the sheriff did or did not do with it, is the record of official action. The report detailing the seizure of this and the description of this. These are purely private records. JUDGE: Well, do we have any sort of a waiver issue here, because I thought some of the allegations were that the video tapes were shown to all kinds of, of people who had no, no right to see them. MS. OEFFLER: Absolutely. The video tapes were shown too, of the media that this video tapes were shown to the victims in this case. I think just like in the case released yesterday, emails had been released, but that didn't prevent the Court from finding that they were not documents under CORA. I think we have the same situation here. Despite the fact that this information has been shared, it doesn't change the essential definition of what a criminal justice record is. JUDGE: Could I ask you to focus on that a little bit. I'm really rolling back to first thing you've said when you begin arguing. Could you compare for us the definitions of public records and the definitions of, of criminal justice records in order to give us that broad initial perspective of which you're after this record should be analyzed under. MS. OEFFLER: I believe the definitions under both CORA and the CJRA are very similar. Was the document made, maintained or kept in an official and used in an official function. The difference between CORA and the CJRA is whether or not is the discretionary point by the custodian I think, the, the major difference. JUDGE: And how do we arrive at the starting place of-- I mean you're going to proceed to tell me what the effect is once being analyzed it under Criminal Justice Record-- under the Criminal Justice Records Act. But what, what is the starting place, place for determining whether it should be analyzed under that or instead under CORA. In other words, what does the-- this Criminal Justice Records covered that CORA does not. What is the relationship of these two sets of documents? MS. OEFFLER: Well, CORA is the first legislative act and CORA initially, I believe covered criminal justice records. Then I think, it was found to be unsatisfactory in trying to deal with the special issues with criminal justice records and then at about 1977, the Criminal Justice Records Act was, was established. JUDGE: But would you regard criminal justice records as a subset of public records? MS. OEFFLER: Yes, I would. JUDGE: And what defines that subset as, as distinct from the, the larger set then. And, and relate that to this statutory definitions if you can, please. MS. OEFFLER: There are records that maint-- that are maintained, made maintained or kept by criminal justice agencies. JUDGE: So are all records maintained and kept by criminal justice agencies with perhaps some exceptions. That generally speaking, criminal justice records as oppose to, to, to public records because-- nearly because of the, the fact that it is a criminal justice agency. Stated differently, the criminal justice agencies have records that are, are public records and not criminal justice record agencies--criminal justice records-- excuse me. MS. OEFFLER: Well, maybe a Court could find that the sheriff's office has certain employment records that maybe not considered criminal justice records or they may have pay an insurance records having to do with their employee's, that aren't criminal justice records. But the bulk of the records in a sheriff's office those dealing with the investigation of crimes would be considered criminal justice records. In this case, we're arguing though that records taken pursuant to search warrant are not criminal justice records. JUDGE: But your analysis of that is under the Criminal Justice Records Act. MS. OEFFLER: Yes, it is. JUDGE: And which you're saying is, in essence, these are the type of records that would be criminal justice records except they are rather specifically accepted out of that as the, as the description of that in statutory provisions proceeds. Is that generally, true? MS. OEFFLER: Yes, yes. I would also accept them out of CORA, the criminal-- I mean the Colorado Open Records Act too. Again, I would say that records taken to Court pursuant to search warrant seized not he handed out to the government for a function, not like a licensing function where you hand in things to the government or you bid on the contract or do whatever. But these are items seized would not be appealable. JUDGE: Where, where is that exception appearance statute? MS. OEFFLER: It is not in the statute. JUDGE: So you're reading it in as a result of the Fourth Amendment? MS. OEFFLER: Yes, I am. JUDGE: So you got some constitutional argument you're making here a while ago, so don't become criminal justice records until they go through, what kind of filter now, the admission and the evidence, is that the key point? MS. OEFFLER: To me, that would be a key point. To me, that would mean that they've contested under the Fourth Amendment. There's been a motion to suppress or else the opportunity to, to file one. There has been testimony and our Court has ruled that the Fourth Amendment has been or restrictions of the Fourth Amendment have been fulfilled. JUDGE: Okay. Is that, is that Fourth Amendment argument what you would declaim both exempts them from the, from criminal justice records and from public records? MS. OEFFLER: Yes. JUDGE: We're not for that constitutional protection, would they be both criminal justice records and public records? MS. OEFFLER: No. I, I do believe they would be only criminal justice records. JUDGE: Well, then forgetting about the constitutional protection, why aren't they public records? MS. OEFFLER: Because I think, the legislature instituted the Criminal Justice Records Act to deal with records that law enforcement keeps, in trying to solve crimes. JUDGE: And can you relate that to some statutory provision or is that merely based on what you suggest are understanding should be at the general goals of the legislature. MS. OEFFLER: Well, I can cite the Court to a couple of cases, Johnson v. Department of Corrections, 972 P.2d. 692, where investigations of law enforcement was considered a criminal justice record or Pretash v. City of Leadville. Again, in that case that was a tape statement of an informant and that was considered a criminal justice record. I mean these are all investigatory tools such like a search warrant. And they become part of a criminal justice investigation. JUDGE: That, that's why I was a little curious about why you answered Justice Martinez's question that these criminal justice records are actually a subset. I mean you seemed to be saying something different now that they're just excluded completely from. The, the legislation seems to read it-- it's always hard to figure out the exact citation, but one it's talking about what public records does not include Prendy it says, it doesn't include criminal justice records you got to go to part three to look, look at that. MS. OEFFLER: And I, and I would... JUDGE: But, but where-- so, so, so a record that is by definition is a criminal justice record and not a public record, do you have to kind of start there and suppose to go in the other way in saying that. The criminal justice record is a subset of a public record that-- it doesn't worked that way, would you agree with that? MS. OEFFLER: Your Honor, I was thinking more in terms if it's a public record, it's not available under the Open Records Act. So, yes. JUDGE: It is the, the statute says that it's-- a public record does not include a criminal justice record. I'm an on just reading, reading what it says here. MS. OEFFLER: Then, you're correct. It's not an open record, it's, it's not a record under the Open Records Act. But I think the whole section is called, “Colorado Public Records” and parts one, two and three are all parts of that, of that section of statute. JUDGE: Yeah, it could be-- we, we could be have in a semantic discussion-- I mean that's for sure and I don't want to hang up on that. But once we get to part three which is where the CORA refers us, all we seem to have is the same old definition of maintain, excess, disseminate, that, that-- that's how you define a record-- a, a criminal justice record, is that correct? MS. OEFFLER: Yes, just made maintain or kept. JUDGE: And now, and you have to be taken the position that maintain doesn't really mean just hold on to a key but that's to mean something different. MS. OEFFLER: We've argued throughout that those are more active terms rather than just have in fact... JUDGE: But-- okay, and, and so understanding that you think maintain is active and suppose to passive where, where does that understanding come from? MS. OEFFLER: Well, I think it's that provision of the Criminal Justice Records Act, which allows the criminal-- allows and sometimes requires the criminal justice record agency to correct errors in the document. JUDGE: Well, I, I'm not understanding, not at all. MS. OEFFLER: The Criminal Justice Records Act has a provision - JUDGE: Excuse me. MS. OEFFLER: - which allows someone to come forward to have errors in the records corrected. JUDGE: I, I understand that, but how does that help us determine whether this is passive or active? MS. OEFFLER: Well, the criminal justice agency can't correct these documents seized pursuant to search warrant. JUDGE: So if this is not correctable then it can't be maintained? MS. OEFFLER: Well, that it doesn't then-- it doesn't fit within that definition. It must mean you asked me how-- what, what, what makes me think that it's more than just a passive keeping. JUDGE: Maintain, maintenance-- we want to. MS. OEFFLER: Right. And I'm telling-- and I'm-- my response would be that the record act requires the custodian in certain cases to correct the criminal justice record. You couldn't require the custodian to correct a record taken pursuant to search warrant. JUDGE: I'm sorry, I need to ask you one more question about the search warrant. Was it challenged? MS. OEFFLER: No. JUDGE: Well, the parallel you gave us was when it was challenged and what's there some kind of review to say it's constitutional. Apparently, there's no challenge for this warrant. MS. OEFFLER: No criminal charges were ever brought, your Honor. It... JUDGE: Oh, I understand but there was a warrant issue, there was item seized who had the standing if anybody, sends the persons who've created these documents were dead to challenge the warrant. So that it could go through this process of determining whether it was validly issued. I'm, I'm wondering whether you can even make the constitutional argument in the absence of a motion to sup-- to, to find that the search warrant was illegally issued. MS. OEFFLER: But at the time the open records request comes in, even the defendant in the criminal case wouldn't have standing to make that argument. JUDGE: Well, this was much later on that the actual documents are requested way down the line. MS. OEFFLER: Right. But in the normal course of events it could be a day after the search. JUDGE: Well, I under-- I understand what's you're arguing and you know, you're arguing an absolute position it seems to me. And you've raised the constitutional ground and perhaps that has been waived as what I'm suggesting to you because there was no challenge to. There was a request to return the documents, there's no challenge of the search. MS. OEFFLER: No, there wasn't a, a specific motion to suppress or, or action brought before a Court. The sheriff's office received letters from the Klebold’s and Harris's saying, “These are our documents, do not give them out. JUDGE: There and are there documents because they've came out of their home even though they didn't create them? MS. OEFFLER: Right. That's what their contention is. JUDGE: Can, can I, can I return where I'm nowhere foot flapping you a little bit, but I'm looking now at the legislative deco-- declaration of the Criminal Justice Records Act. And it seems to differentiate between accuracy and maintenance, says the general assembly hereby finds that the maintenance access dissemination completeness accuracy in sealing a criminal record. There are a matters of state wide interest, but it doesn't seem to assume that the reason maintaining is passive just because it has-- the records have to be accurate rather differentiates. And how can you help me understand this active, passive differentiation. How can you help me finds report for that in the statute? Because I'm not, I'm frankly not able to find that myself at the mome-- at this moment. MS. OEFFLER: In those terms-- could I direct the Court again to the decision from yesterday. Now, this is CORA, but - JUDGE: It is CORA, yes. MS. OEFFLER: - but again, the same legislative intent is fair, the same terms “made,” “maintained” and “kept.” Those emails were certainly made by public officials, they were kept by Arapahoe County, and they were used in an investigation. Yet this Court ruled that they were not available as open records. And since we're dealing with the same definition in this case, I think that case is very strong-- that case combined with the Court's previous findings in Wick. JUDGE: Okay, I understand that but, but, but for yesterday's case, where, where does your argument come from? That there is no statutory based in, in the Criminal Justice Records Act. That, that you can point me to, is that right? MS. OEFFLER: - I, I-- just believe it's common sense, if someone finds a-- if someone finds a lost document and hands it in to the police to hold, for a certain period of time before they can claim it as their own, just because they're keeping does that, does that make it an open record? I, I just don't see how you can convert a private document into a public one simply because it's in the hands of government. JUDGE: Well, our announcement yesterday was, was grounded in statute. And look to the, the relationship of the content of these messages to the, the, the public functions, the authorized functions of the agency. If you apply that same analys--just analysis to the Criminal Justice Records Act, where does that leave you, when you're saying, “Well, the content of, of things that are seized relate to the private matters of the people from whom they are seized.” But in the case of the criminal justice agency, they are seizing those for particular purpose, because hopefully and when they seize them, the content relates to their business, the investigation of criminal matters. What do you do with that, there's a different purpose or, or public function of the criminal justice agency in, in some circumstances such as perhaps the one here. Then there is in the case of Arapahoe County. MS. OEFFLER: Then I, I think I'd draw the Court back to Wick Communications, where you have the county manager keeping a personal journal but using that personal journal and actually putting verbatim quotes in an outline on termination of an employee from the journal. That didn't convert the journal into a public document. He used it in the course of his official functions, just as the police used these documents in the course of their official functions. They may quote these documents but it doesn't convert the private into a public. May, may I give-- I think the other parties who would like to argue to and I pretty much used the time. JUDGE: Well, I-- you're about out of time. So, sure. ORAL ARGUMENT OF MIKE MONTGOMERY ON BEHALF OF THE PETITIONER MR. MONTGOMERY: May it please the Court. My name is Mike Montgomery and I represent Mr. and Mrs. Harris and I would like to address one additional constitutional argument and that is due process. And in particular, to answer Justice Hobbs question about how the, how the press and so forth finds out about the sheriff's activities and so forth. And my answer would be in some manner that does not violate the constitutional rights of the private citizens. If this Court were to adopt the interpretation as proffered by the Denver Post, it would mean that if someone execute a search warrant and Justice Bender's private diary were taken off his desk, the next day, the Denver post a request that private diary and the sheriff would have the unfettered discretion under the statute as written to hand that diary or a copy of it to the press... JUDGE: Well, Mr. Montgomery, if that-- if your argument is correct, then you're not really talking about the Fourth Amendment. MR. MONTGOMERY: I'm at the Fifth Amendment and the--of the US constitute--and the 25th Amendment of the-- of article 2 and the... JUDGE: Where is that acknowledged in the statute? MR. MONTGOMERY: Well, the Colorado legislature in CRS24201 has said, quote: In enacting a statute, it is presumed that compliance with the constitutions of the state of Colorado and the United States is intended. And it is the task of this Court in this case to determine what the legislature intended. And one of the conventions that have-- that has been adopted by Courts in making that determination as stated in the opinion yesterday is that the Court should interpret the statutes of a legislature so as not to render them unconstitutional. But in this sense to say that the sheriff would have the unfettered discretion to deprive private citizens of their property under this, under this act without giving them notice that anyone have requested it, without giving them any opportunity to be heard and much less a meaningful or timely opportunity would be violative of due process. And that statute can be interpreted so as not to be unconstitutional by saying that merely because items seized by a search warrant, are seized by search warrant does not make them criminal justice records, that is a constitutional interpretation of the statute. If you say that merely by possessing these items, by having seized them by search warrant, they become criminal justice records open to... JUDGE: Mr. Montgomery, let me ask you another question. Let say for example there is a seizure of documents and say from a doctor's office. So there's a motion suppress, it's denied, the documents are about to be disclosed, they will be disclosed unless somebody comes in who has a privacy interest in us. MR. MONTGOMERY: That is a different... JUDGE: And-- it-- well, how was it different? MR. MONTGOMERY: Well, it's a different scenario and it goes to what Justice Hobbs was asking to at some point. A privately seized documents may become public or, or criminal justice record - JUDGE: They will, they will become, won't they? MR. MONTGOMERY: - or, or Court records because they are used in some other public function. But that's not the issue here, these documents were used for example for the creation of the sheriff's report, they are referenced in the sheriff's report, portions of them are. That sheriff's report is a criminal justice record or a public document. There were transcripts of the video tapes that were introduced at either the sentencing hearing of Mr. Manes or Mr. Duran, I forget which one. Those transcripts are Court records, but that does not mean that just because the private documents were utilized to create those criminal justice records or those Court records that just because of that, those private documents themselves become criminal justice records. And it does not mean-- and it cannot mean under the statute, that the sheriff could come in under the broad authority of search warrant and take Justice Bender's private diary off his desk and before and even termination had been made as to whether there had even been a crime committed or whether there was anything relevant in that document at all. In a criminal justice system issue, that the Denver Post could come in and the next say, “Under this act and give it to me and he would have to give to him.” JUDGE: How do they, - MR. MONTGOMERY: Well, what... JUDGE: - because-- how they become criminal justice records then if not by that mere seizure? MR. MONTGOMERY: The-- they-- the documents themselves do not ever become criminal justice records. They may be referenced or potions of them maybe cited or, or quoted in criminal justice records and to that extent the, the public would, the public would see some of what is there. But, but the only issue decided by the district court and the only issue that is before this Court is whether private documents seized by search warrant by virtue simply that seizure and, and coming in to the possession of a sheriff are criminal justice records. And we suggest they are not. JUDGE: Could-- just remind by that [inaudible]. MR. MONTGOMERY: I'm sorry – JUDGE: Go ahead. MR. MONTGOMERY: It doesn't mean that, that pick on you, Justice Bender. JUDGE: That's okay, I'm used to it. As-- I want to ask you a question. What-- I don't understand when-- I understand your narrowing of the issue by Judge Jackson. But what I don't understand is when, when and how do these documents at some point become criminal justice records subject to disclosure. What, what is the statutory test and if you can't find the statutory test which is after we've been struggling with. What's the constitutional test? MR. MONTGOMERY: I don't think they ever become a criminal justice record. They maybe referenced another documents that are criminal justice record... JUDGE: But wait, they clearly become criminal justice records, if they're, if they're introduced an evidence in the trial. I mean I-- that, that goes to where I've seen it. MR. MONTGOMERY: Well, I, I, I, I bet yes, that's, that's correct. If the actual [inaudible]. That's one, that's one. JUDGE: My diary, okay. MR. MONTGOMERY: That's one. JUDGE: All right. But, but now you want-- we have to come up with some kind of theory, some kind of definition to say why, what were protected and it-- if, if, if-- and under the statute itself, just wait, it's written. I think the way the questions have gone it's pretty tough to come up with the, with the definition-- is to have to heard one that satisfies you. But under the Fourth Amendment, is it our due process, constitutional concerns what-- when do we make that decision? MR. MONTGOMERY: Well, it would have to be at a time-- I mean, this is not much of an answer, but it would have to be at the time and in a manner, after which the constitutional rights of the owners of the property had been protected. That's the best I can tell you. It could not become a criminal justice record subject to the press being able to come in and asked for it and giving the sheriff the unfettered discretion to give it to them until after the private citizen had been given an opportunity... JUDGE: In the sentencing case, that the two cases where one case with person was sentenced, I don't remember his name – There were sections of these documents introduced for a work. – MR. MONTGOMERY: Right. JUDGE: So they become public record there's no standing of course in the part of person at sentence. MR. MONTGOMERY: That's right and well, that's correct. I mean the, the transcripts were there, they were used by, they were used by the prosecutor to-- for those sentencing provision. So at that point, the transcript of the portion of them became a criminal justice record or a Court record. But that does not mean that the underlying data, from which that transcript was derived became a criminal justice record at that point. JUDGE: But I understood, you do agree that had they played the video tapes that would have been open those video tapes. MR. MONTGOMERY: - I don't know, it's, it's very-- I don't know, it's very difficult to, to comment on purely hypothetical situation despite, despite... JUDGE: Well, that's not I mean video tapes are put in to evidence all the time. Why would that be an... MR. MONTGOMERY: Right, that the actual video tape presented into evidence maybe if they were just played. I don't, I don't know, I have to know whether, whether there was something there in the Court's record of that. But perhaps, perhaps there would at that point become a, a Court record and something that, that is not the case that we have here. JUDGE: Thank you. ORAL ARGUMENT OF STEVEN D. ZANSBERG ON BEHALF OF THE RESPONDENT MR. ZANSBERG: Madam Chief Justice, Justices of the Court. My name is Steve Zansberg with the law firm of Faegre and Benson. And I'm here today on behalf of the respondent, the Denver Post Corporation. With me at Counsel table is Thomas Kelly, my partner. May it please the Court. I think it's important to know that the outset that the Court is not called upon to determine today whether the records at issue should be disclosed to the public or whether such disclosure would be contrary to the public interest. That is not the question among-- the questions to this Court has accepted for review and at that, that balancing of computing interest has not yet occurred with respect to this records by any Court below. And to a large extent, all of the constitutional concerns have property rights and a privacy rights. Our really questions raised in the disclosure portion of the analysis under either, either act as the Court said in footnote four of the Wick case. Instead, the only question that this Court has called upon that has answered today. It's a question of statutory construction and that is whether the records at issue and all records ceased subject to a search warrant for use in a criminal investigation are subject to disclosure at all under the Criminal Justice Records Act. Whether a member of the public may asked a records custodian for access to such records and upon denial of such a request have the right to judicial review of that... JUDGE: Mr. Zansberg, what, what is the statutory language that authorizes disclosure here on a mere seizure by, by the government of the private, of private papers. Where, where do you get the statutory analysis that permits disclosure? MR. ZANSBERG: Well, the statutory analysis begins with the definition of what terms are subject to the act and decision below has sustained would find that records of criminal justice agencies that private writings that come in to the hands of criminal justice agency to a variety of means even if entered in to a Court of law as evidence which is a criminal justice agency under the act would not be subject to the act. The definition of criminal justice records in 22723(o)1, I believe. JUDGE: Oh, what converts it from private to, to public documents? MR. ZANSBERG: If they set aside the statutory criterion of being made... JUDGE: Well, there's, there's no language that says that. It says, “May kept, maintained for the exercise with function authorized by law.” So the seizure has certainly pursuant to constitutional safeguards. Right? That, that goes to that saying. MR. ZANSBERG: That does go to that saying. JUDGE: So what is it? We know that, that, that-- so, so how do you get that-- their not... MR. ZANSBERG: That it, it's whether or not as in yesterday's Wick decision, or the Tracy Baker case. It's a question of statutory construction to the statutory terms, are these records, writings, that had broadly defined not nearly documents but any regardless of physical form that are made, maintained or kept by a criminal justice agency for use in the exercise of functions authorized or required by law or administrative rule. JUDGE: Well, - MR. ZANSBERG: And they... JUDGE: - let me ask you a question. Let-- let's take another application. Let's say in your law firm, there's an investigation and so it will cease attorney partners, computers and that cease frankly or states ceases 20, 20 computers. So what's your position on that thing? Is that - MR. ZANSBERG: No... JUDGE: - private material? What makes that public to statute? MR. ZANSBERG: That if they satisfied the statutory criterion of being a lawfully ceased obtained by the government for use in the exercise of... JUDGE: Criminal investigation. Oh, but, but the question is: isn't that-- what satisfies that statutory definition in the context of Justice Bender's questions? Does the seizure satisfy that, that definition? MR. ZANSBERG: Yeah, I, I apologize for I misunderstood. Yes, if, if a, a law enforcement agency operating under a lawful authority for use in, in the functions authorized by law or administrative rule, the statute is 163305, that authorizes sheriff's to execute search warrants. And so that... JUDGE: You just do a qualifier on that. You said, “Pursuant to lawful authority if the seizure is unlawful.” Does it become a criminal justice record with that definition under your argument? MR. ZANSBERG: Again, in, in a hypothetical case not the case here, since there has been no challenge to the lawfulness of the seizure and the Court Appeals so found a no party has challenged that on appeal but in the hypothetical case. There would be an issue, I think for disclosure and for the types of due process rights of return of property unlawfully ceased. But that doesn't addressed the issue of the open records at text, in whether copies of such property maybe maintained by... JUDGE: So, so your point would be, because that's a matter of, of disclosure, the mere fact, if you assumed there are illegally ceased, that would still-- that would not defeat the statutory definition that you're relying on that irregularly-- unlawfully ceased the records by virtue of the seizure would be maintained, kept etcetera for the, the business of the agency. MR. ZANSBERG: Yeah, in a hypothetical case where sheriff without a lawfully issued a warrant based upon an affidavit of probable cause as here, no judicial order without probable cause breaks into a law firm or any other private residence and ceases records. There could be an argument that those are not criminal justice records because they were not for used in the exercise of functions authorized by law or administrative rule. Here, there's no dispute, no parties testified... JUDGE: Why would they be authorized for use in functions authorized by law? MR. ZANSBERG: Because they were taken without any authority. JUDGE: For some authority for the taking is necessary. MR. ZANSBERG: Yeah. A search warrant is, is a judicial... JUDGE: So what happens-- I'm sorry to interrupt you. What happens in the case where, where the, the Court later finds that there was an inadequate probable cause and suppresses the evidence of the criminal case? So there's-- wasn't authorized by law ceased these documents, or ceased-- whatever this is, how do you-- so yet this is all disclosed. MR. ZANSBERG: Well, again, the disclosure question is a separate question from that, it's initial preliminary matter of whether or not the records are satisfied the statutory proceed... JUDGE: As I recall here, to the First Amendment, well, if a cat is out of the bag, it's out of the bag, you know? So we don't deal with the whole, whole function and under the-- of the statute including the constitutional ratifications having really, the reason you're up there is because you're arguing First Amendment principles, really, aren't you? MR. ZANSBERG: Well, I have to... JUDGE: The right to obtain, to obtain information and the right to shut, to shut action on, on government and agency so, so anyway...I don't think you're now, I don't think you're now kind of perspective as, as very helpful, frankly. MR. ZANSBERG: Well, I think, I think the Court must interpret a statute--statutory terms in, in, in the context of the legislate of intent. That is evident from the overall statute and, and I, I agree with you Justice Bender, the overarching purpose of both the public records act and the Criminal Justice Records Act is to foster public trust in government institutions. And it's to do so by opening up the conduct of government agents to scrutiny by a public. And that scrutiny is not limited to records of official actions as the petitioners here are, are arguing. They would basically adopt the Court of Appeals' position at the Criminal Justice Records Act is limited only to records that document and memorialized the final decision or conduct taken by a governmental agent. But the Criminal Justice Records Act has another provision that originated in the public records act before 1977 that opens up the records upon which government action are premised, the data of government that served as the basis for government... JUDGE: Tell us about that a little bit because you're-- I think you're not trying to distinguish yesterday's case. So my question was-- now, let's assume the rehearing period is long in yesterday's case which it hasn't but we stick by it. What distinguishes your case from that one? MR. ZANSBERG: The, the case decided yesterday and Wick Communications are, are readily distinguishable and they actually support our position. Remember that, that no part of here is arguing that this records were not lawfully obtained subject to the Court order. No part of here is contesting that the records were not held or in the possession of the sheriff's office other than in the exercise of official functions for use in the exercise of official functions. Both Wick Communications and the Tracy Baker case decided yesterday... JUDGE: I, I would prefer if you talk about some of the things that you claim no one is arguing because as you, maybe aware from the review of yesterday's case. A parties by that advancing sort of arguments gets-- get us a lot of trouble which addressing constitutional arguments are necessarily. And so it seems to me that whether anyone is advancing it or not, we ought to be looking really hard at whether this records fit that definition. MR. ZANSBERG: I understand. I, I don't think a critical argument can be made that Sheriff Stone was in possession of these writings by the two killers involved in the worse close shooting in United States' history in investigating that crime in any capacity other than in his official capacity. The Court of Appeals so held and-- but I have wanted precedence as an issue of waiver. I just don't think there's any credible argument that Sheriff Stone have these records for his personal use at home. These are records that are unquestionably. And, and the record by the way supports back contention, I believe that pages 775 to 77, Sheriff Stone tendered a, a court document in which he conceded that he used these records in the investigation of the crime. JUDGE: What about, what about his apparent other used-- misused say of this documents for entertainment value apparently? MR. ZANSBERG: Well,... JUDGE: She was [inaudible] to some, some favorite few people. MR. ZANSBERG: Whether that use was for functions authorized by law or administrative rule, I don't think changes the analysis here. I think at the time, the sheriff believe that it did shed light on the conduct of his agency. They-- he has also released numerous other documents that were ceased both subject to search warrant and not subject to search warrant. Numerous documents have been confiscated and a private writings including of the victims found at the crime scene at Columbine have been released by the sheriff's office under the Criminal Justice Records Act. Apparently, and that was instances, the sheriff believed that those documents has private writings in his hands, did shed light on the conduct of the investigation despite privacy interest and, and property interest associated therewith. The-- getting back to the Baker and Wick cases. The Court in those cases made clear that if those official custodians, the authors of those writings, the diary in the Wick case, the emails in the Baker case made those writings in an official capacity then they were unquestionably or to use the term used in Wick, clearly, public records. Here, and, and the Court used-- it construed the terms made in and kept in the possess to resends that the dictionary understands those sentence. By contrary, the position advocated hereby, the petitioners that there must be an active contribution to and updating kept the diary for instance. The reason why Montrose County didn't keep Hunt's diary, as the Court says, it's because he kept it locked and then his possession. He kept it in a physical possessory sentence. And yesterday's ruling found that Arapahoe county maintained the emails even though no one in Arapahoe County other than Tracy Baker and list of sale have input in to those. They were maintained on a server by the county and therefore, they were kept, they were held. Notably in Wick Communications, the Court used the term, “held or holds” seven independent times to, to find the term “made or kept.” And we've cited in addition, since we've talked about entry of records in to a Court of law, we've cited as a supplemental authority. This Court, chief justice directive 2501 adopted in April of this year that defines court records and this is important because in background information services against office of state court administrator, this Court held that access to criminal finals. Court files under Colorado law even the records that are privately obtained private writings that are subpoenaed, or search warrant or voluntarily or otherwise, tendered to the Court access to those records are subject to this act, the Criminal Justice Records Act. It's, it's noted in the chief justice directive itself and it is the holding of background information services. So there isn't any logical or certainly textual distinction to support the petitioners' view that once private writings are tendered as evidence or inadmissible evidence that are made part of the court record nonetheless that any other statute or any other analysis applies that just by Ms. Oeffler had said, “If the rule of law advocated here is records that come in to government's hands, come in to hands, a private writings by virtue of a search warrant or subpoena or other, or found at the scene of the crime, exigent circumstances etcetera.” Then even when evidence in the Court of law, the public shall have no access to such records. Why is it any different if it's for use in the exercise of functions authorized by law or administrative rule by these criminal justice agencies as defined by the statute courts of law. There is no logical basis or such a distinction. JUDGE: Oh, well, wait a minute, I think you're asking the question. I want to get back to what we were talking about earlier. I mean, you would make a logical distinction if the evidence were unlawfully ceased. And so you're reading some requirement in to the, the nature of the agencies authorized functions that is part of the authorized functions are not to maintain evidence that they have to cease them lawfully. But why that distinction as oppose to-- for example a, a distinction that's-- that would be step away from that which is maybe the content of the ceased evidence has to relate to criminal investigation. Evidence is lawfully ceased and some of it is totally irrelevant to the-- to the matter on that under investigation. So why shouldn't the distinction be something along the lines of whether it's relevant to the criminal investigation. What-- how is that inferior to distinction that you're making which is back at the seizure has to be lawful? MR. ZANSBERG: Well, I, I'm basing my argument on the statutory text and I, I might have misspoken on portions if I did. It-- the, the, the records or criminal justice records if they are maintained or kept in a possess recent for use in the exercise of functions required-- authorized or required by law or administrative rule. And the sheriff is authorized and actually required it's a duty to, to execute a search warrant under state law, to execute search warrants. So upon being given a search warrant and executing it, all records ceased even those ultimately later deemed to be inadmissible or irrelevant are come within a statutory definition and then the question of disclosure is a question for another day. But as long as the sheriff is acting pursuant to administrative rule or functions that are authorized or required by law or administrative rule in originally obtaining and then thereafter, maintaining and keeping those records for use in criminal law functions they satisfy the statutory criteria. JUDGE: Well, doesn't that fell to distinguish from yesterday's case, because that same argument could be made about yesterday's circumstances, right? I mean the county was maintaining these emails in the course of their business to make communications available to their employees and maintain their network. So in so far as the general notion that they had in some business doing this, that applies to yesterday's case too, and yet we didn't find that way. MR. ZANSBERG: I, I didn't find that the Court found at the contrary either. The Court didn't focus very much attention on the conduct of the board of county commissioners. I think it would prove to much to say anytime, any public records custodian has any record and has a lawful duty to disclose records under the public records law. That would be a functions authorized by law or administrative rule, that would be circular and then you would get to a mere possession rule. We are not advocating, we never advocate the mere possession rule that any document in the possession of the sheriff's office or any other public office is by virtue of mere possession in public record. It must be possessed for using the exercise of functions authorized by law administrative rule. And I don't believe that the public records act or the Criminal Justice Records Act are such laws that authorized... JUDGE: It was on partial response to this question by Justice Martinez that the communications in the Baker case were so private and had the potential for scandal and were, were irrelevant to public kinds of functions whereas, these tapes and documents show how a crime was planned and committed. Isn't that the essential difference? MR. ZANSBERG: Well, yeah, it is. And I, I haven't done a good job before articulating it clearly. But it is the difference of how the documents and, and their position in custody by a public official sheds light on the conduct of that governmental official. Tracy Bakers' emails and manager-- county manager, Hunt's diaries shed no such light. They weren't made in their official capacity. That's the holding of, of those two cases, that there was no use that, that were not made maintained or kept for use. Here, the sheriff was investigating the, the Columbine, he, he review this records not only to determine whether a Columbine could have been prevented but he was investigating crimes, homicides. What did the perpeter--perpetrators do before the crime, how did they plan it, how did they obtain their weapons, how were the bombs assembled and deployed. Hand signals that were used in the course of committing the crime. Diagrams at the Columbine high school in order to carry out the crimes, the target list. Who else may have assisted or had knowledge of the killer's plans prior to the crimes. And it, it's an interesting contrast that, that there was press conference held on April 24th in which sheriff, Sheriff Stone having reviewed these records said that the parents must have known. And he said that others are involved in the attack and yet in his final report, issued in May of 2000 on, on paragraph 4 on page 2, he says, “No known evidence suggested anyone had prior knowledge of the killer's plans.” How was the public able to understand the difference between a statement made immediately after reviewing this documents and a statement made a year later if they don't have access to the, the records themselves. But my point... JUDGE: Mr. Zansberg, Judge Jackson, the trial judge in this case made very specific findings about this issue. I wonder how, how you do that, he based-- he said, “There may be a public interest and there maybe even a benefit for public discussion about the information that's here.” Where he included it as, as unrealistic that, that these thoughts will tell us something useful about the conduct of a sheriff's office which is the purpose and the very premise uphold CORA statutory regime. And it goes on to detail that-- you know, the identity of perpetrators is known and, and so forth. That, that the diary themselves were not in any way have help evaluate the conduct of law enforcement on the day of, of this, of this great tragedy. So what-- how do you respond to it? MR. ZANSBERG: Well, I don't think it necessarily does explain the conduct of government officials on the day of the Columbine tragedy. It does explain the conduct of government officials for an entire year and thereafter follow the Columbine tragedy where they spent all of that time investigating that crime and deciding who if anyone should be charged with crimes for being a participant two men were charge as a result of, of review of those tapes. And there was also a writing from the father of Erik Harris that may well shed light on his knowledge of his son's activities and with the-- in help informed the public about the law enforcement investigator's decisions about who if anyone should be held criminally responsible for those acts. JUDGE: Let me interrupt one time here. Several times you, you-- you've distinguished the disclosure element from the question of what's included in the definition. And Mr. Montgomery referred several times to the unfettered discretion of the sheriff to disclose. I guess, I'm curious whether you think there was any meaningful limitation on disclosure of, of records once they've-- once they qualified as criminal justice records. And if there is, is that relevant to our construction of the legislation in, in terms of the leg-- of the breath of what was intended to be included in the documents as criminal justice records at all? MR. ZANSBERG: Well, the, the statute does plays and, and if this is true to abide the statute because it both, both the public records act and the Criminal Justice Records Act have the identical term with respect to investigative files. Which incidentally include investigative files compiled for any law enforcement purpose in construing the statute as a whole you looked at terms that proved that there was some intent to include the writings of a private parties. But the, the statute is the, is the same and does allow discretion if contrary to the public interest to a records custodian to withhold this or any other records other than records of official actions. And, and subject to judicial review which would be lost if they weren't covered by the act. And so the, the statute provides discretion enhance of a sheriff or police officer to decide whether or not records are too private or too potentially damaging to the fair trial rights for a criminal defendant to withhold them. And that's done every day of, of the year in, in Colorado. Sheriffs and police officers do not disclose records merely because they've taken-- I mean, possession. The, the rule, the, the concerns raised by the petitioners that a sheriff might choose to do so despite ethical duties and, and concern for constitutional rights and liability as the Sheets case-- both party's side makes clear. Disclosing a personal diary can give rise to civil liability under section 1983. So sheriffs and police officers have some-- should have some concerns before disclosing records without perhaps a, a judicial order authorizing it. But the argument proves too much and too little at the same time. The sheriff concedes that a, a sheriff and in yesterday's decision said this as well that even records that are not subject to the public records laws maybe disclosed in any case. Nothing prohibits a sheriff or any other records custodian governmental official from disclosing records even if they're not public records or criminal justice records. So the argument really doesn't support this concern over an exclusionary rule only admissible evidence is, is a criminal justice record. It also proves too much because enough-- a lot of records that petitioners concede are criminal justice records in their construction of the words made or maintained, main-- maintained or kept despite but this Court has said about these terms in Wick and Tracy Baker. Active writing that occurs when a probable cause affidavit is sworn. And it's written by the police officer and that frequently includes inadmissible evidence. And sometimes even confessions and, and all kinds of potentially private information. But that would mean that those records also aren't criminal justice records on to their statutory definition because it's not admissible. It may well be deemed suppressed that's on future day. It wouldn't be consistent and, and there's nothing in the statutory text or at the intent of the legislature in opening up the records that government officials review not necessarily the records the government officials write. That's supports treating-- creating essentially an exclusionary rule for the definition of Criminal Justice Records Act. JUDGE: And so the trust of that basically entered then at the, that-- you think there would be-- that it would be an abuse of discretion or let's say that, that documents even though criminal justice records would not be disclosable. MR. ZANSBERG: I'm sorry. It would be an abuse of discretion. JUDGE: Would it be in, in-- are, are you, are you in effect answering then that under certain circumstances it would be an abuse of discretion to disclose criminal justice records? MR. ZANSBERG: Well, I, I, I suppose abuse of discretion, I don't know that the, the records act allows a records-- a Court to order non-disclosure of the criminal justice record. It may not be an abuse of-- I mean, so I, I maybe, I maybe... JUDGE: Would, would the act, would the act permit or require a Court to prevent the disclosure of records even though they are criminal justice records? MR. ZANSBERG: That the act allows a, a Court to authorize and to require non-disclosure if disclosure be contrary to any other state or federal statute. So there're maybe an argument that despite the sheriff having obtained from the Harris home as I understand it subject to these very search warrants. The, the, the educational record of Erik Harris and having disclosed it that, that may have violated fearput. I'm not familiar enough with fearput, I know about the criminal law exceptions but there are a merited federal and state statutes that prohibits disclosure of certain private records including medical information. And the Court is authorized under the Criminal Justice Records Act 305 to order non-disclosure had contrary to pub--a, a state or federal statute. JUDGE: But Mr. Zansberg, did you also say that you could envision circumstances where there could potentially be a 1983 action against the custodian for disclosing records in a manner that violated constitutional rights? MR. ZANSBERG: Yes, the, the Sheets v. South Lake County case cited in both party's briefs finds that there is a constitutional-- that there is a constitutional right of privacy and that allows-- that prevent the government from disclosing private information in the government's hands, highly private and personal information without the consent of the, the person identified. And in that case, it was a diary of a decedent that talked about the, the plaintiff. So, so there is an action claim for invasion of privacy under proper circumstances. But again, that goes to the disclosure issue not the definitional issue. JUDGE: One more thing about the disclosure issue. Would you think that a Court could-- or a custodian to deny access to records on the grounds that it was not in the interest of-- in an-- would be for terminology - contrary to the public interest on the grounds that it violates constitutional rights of the persons from whom they were ceased. MR. ZANSBERG: Well, we, we do believe in and, and support the position at the Colorado district attorney's Counsel and their amicus brief. And I should note that Sheriff Cook is the only law enforcement official advocating the position put forth by the Harris's and Klebold’s here. All of the other amici including the attorney general John Suthers and the Colorado district attorney's Counsel representing 22 judicial districts urged the Court to find these are criminal justice record. And they make a point in their brief that privacy interest of individuals are countervailing public interests. It outweigh disclosure in certain circumstances and that's the Martin and Elly test that this Court has, has applied and in fact Judge Jackson applied in this very case as Ms. Oeffler pointed out and order reduction of numerous records. JUDGE: And you agree with that? MR. ZANSBERG: It, it is-- a non contested... JUDGE: And you also agree that the authority to define those parameters would be-- although initially in the, in the custodian-- the agencies custodians-- what has been described as unfettered discretion, you would say it's not unfettered because it would be ultimately be guided by principles of law and ultimately be subject to in some fashion, Court review? MR. ZANSBERG: Yes, I, I... JUDGE: Court review is an statute though is it? MR. ZANSBERG: Well, Court review for a, a denial of access. JUDGE: Yes, and now we're talking about a, a granted access that a Court would then disapprove of. Right? MR. ZANSBERG: Well, I, I don't know that the statute provides you that but there are other remedies available including monetary damages for violating a constitutional rights under section 1983. I would think that, that would give pause to records custodians before they exercise unfettered discretion in disclosing highly private and personal records. JUDGE: The property due process argument that was made, would you respond to that? My understanding is that the Denver Post is seeking to view the documents not to keep them, right? MR. ZANSBERG: Well, - JUDGE: Is that correct? MR. ZANSBERG: - It's correct with respect to the basement tapes themselves only if with respect to those tapes that Denver Post below clarified the position that it wished to inspect but not to copy those tapes. JUDGE: In other documents they want to copy. MR. ZANSBERG: Yes. JUDGE: Well, given both of those categories, would you answer or respond to this issue about due process and property. MR. ZANSBERG: Yes, nobody contests-- again, I-- the, the Denver Post acknowledges that Harris's and Klebold’s through the law of intestacy are the property owners of the chattels. The physical goods that have been ceased subject to a search warrant and remained the owners of those chattels even during the time that the sheriff maintained custody over them, that includes clothing and instrumentality world. Instrumentalities of crime is, is another matter. But in this case it includes the video tape and the audio tape and the physical document. What it doesn't include is the ideas, the information contained in those channels that the government is free to make copies of and used for its purposes. As well as to maintain them to prosecute crimes, to defense civil lawsuit which you-- as-- actually why the sheriff was still maintaining these files and keeping them at the time the Denver Post request. He was a defendant in civil liability lawsuit along the lines we've discussed in federal court. And he was using those in the exercise of functions authorized by law or administrative rule defending a lawsuit. So their property rights are limited to the physical goods not the information that served as the basis for government action. Those are, are criminal justice records. In terms of due process that again those, those rights really apply first upon seizure and that, the warrant requirement is one means of, of, due process protection for the confiscation of property. And in terms of disclosure, the Harris's and Klebold’s have certainly demonstrated in this case that they have had adequate opportunity and notice to be heard and will on remand to contest the disclosure of records that they claim would violate their rights onto privacy or, or property. So there are--there is due process demonstrating in this very case for protecting such rights. I would just point out that, that weight of authority aside from the statutory definitions, we have cited 11 separate decisions from the state and federal courts. All of them have found that private writings coming in to government's hands for use in a criminal investigation including suicide note, things confiscated at the scene of the crime, etcetera, constitute records under those state and federal statutes including the federal freedom of information act. They are compiled for a law enforcement purpose. They may be exempt from disclosure and several of the authorities we've cited have found that they are exempt from disclosure because of privacy interests recognized by those statutes. And the fact that those statutes may vary somewhat from Colorado's Open Records law, it doesn't detract from the fact that there are animated by the same governing principle part of Colorado's Open record statutes and Criminal Justice Records Act which is open up government conduct to public scrutiny. And I would note that the petitioners have been unable to cite any authority from any jurisdiction holding of contrary. The cause of the, the Denver Post and all four of the amici who had file briefs before this Court believed that legislature intended that records that are maintained and kept in the possession of a criminal justice records agency for using the exercise of functions authorized by law or administrative rule. As here, the Columbine disaster ought to be declared criminal justice records and that's the only issue this Court has called upon to insight today. And unless there are any further questions, I-- thank you. JUDGE: Thank you. We want to thank the parties for their arguments and the current case is submitted. The court is going to take a ten minutes recess 'till the courtroom could clear. END