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Board of County Commissioners of the County of Arapahoe, Colorado v. Tracy Baker, et al.

95 P.3d 593, Court of App. No. 03CA0074 (Colo. Crt. of App., July 17, 2003), modified and rehearing denied, 2003 Colo. App. Lexis 1651 (Colo. Ct. App., Oct. 23, 2003), writ cert granted Denever Publ. Co. v. Bd. Of County Comm'rs of Arapahoe, 2004 Colo. Lexis 572 (Colo., July 26, 2004), aff'd. in part, reversed in part, remanded by Denever Publ. Co. v. Bd. Of County Comm'rs of Arapahoe, 121 P.3d 190 (Colo., Sept. 12, 2005), rehearing denied by 2005 Colo. Lexis 940 (Colo., Oct. 17, 2005)

Colorado Court of Appeals holds that a governmental official has a limited expectation of privacy in sexually explicit and romantic e mails he sent to a female subordinate via a County’s e mail system.  This expectation of privacy was created, in part, by the County’s e-mail policy.  As a result, the Court remanded for reconsideration so much of the trial court’s decision which directed disclosure of these e-mails pursuant to Colorado’s Open Records Act (“CORA”).  On remand, the trial court was directed to determine the “least intrusive” form of disclosure necessary to serve the “compelling state interests” for which such disclosure was sought.

Respondent Tracy Baker (“Baker”) is the clerk and recorder of Arapahoe County, Colorado.  Respondent Leesa Sale (“Sale”) is Baker’s assistant chief deputy.  As a result of certain charges of impropriety leveled against Baker by a former governmental employee, the Arapahoe County Board of County Commissioners hired a private investigator who prepared a report (“Johnson Report”) concerning the charges.  This report included “the contents of 570 sexually explicit and romantic e-mails that Baker and Sale sent to one another” over the County’s e-mail system. 

At the time of the transmission of the e-mails, Arapahoe County had an e-mail policy, of which both respondents were aware, pursuant to which the County “reserve[d] . . . the right to review . . . and disclose all matters on the County’s e mail systems at any time.”  The e mail policy further provided that e mail was to be used for business purposes, and that all e-mail messages are the property of the County.

However, the County’s e mail policy also provided that “messages not deleted by users will be automatically purged after 90 calendar days . . . with no further possibility of retrieval,” that “some occasional use of e mail for personal reasons is anticipated” and “that notwithstanding the County’s right to retrieve e-mails, they should be treated as confidential by other employees and accessed only by the intended recipient.”  A number of the e-mails in question were retrieved by a computer expert after having been deleted by respondents.

The Board released a redacted copy of the Johnson Report.  The News Media thereafter applied under Colorado’s Open Records Act for disclosure of the e-mails, or the unredacted Johnson Report.

The trial court directed disclosure of the entire Johnson Report, including the contents of the disputed e-mails, finding that respondents had no legitimate expectation of privacy in the e mails.  The Appellate Court disagreed, and remanded for reconsideration as to the appropriate scope of disclosure, if any.

The Colorado Court of Appeals held that the e-mails in question were public records subject to public inspection in accordance with CORA.  However, such inspection could not proceed in violation of an individual’s Constitutional right to privacy.  Following the lead of the Colorado Supreme Court in Martinelli v. District Court, 199 Colo. 163 (1980) the Court held that the propriety of disclosure was determined by “a three part balancing inquiry:”

(1)  does the party seeking to come within the protection of the right to confidentiality have a legitimate expectation that the materials or information will not be disclosed?

(2)  is disclosure nonetheless required to serve a compelling state interest?

(3)  if so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right to confidentiality?

For an individual to have a legitimate expectation of privacy in the information in question, he must show that “the information . . . is ‘highly personal and sensitive’ and that its disclosure would be offensive and objectionable to a reasonable person of ordinary sensibilities. . . . [T]hose materials deserving the highest constitutional interest concern the intimate relationship of the claimant with other persons.”

Applying this test, the Court held that respondents had a “limited expectation of privacy in the e-mails exchanged.”  In reaching this result, the Court relied heavily on the substance of the communications in question, which were highly personal and sensitive and therefore entitled to heightened protection.  The Court also relied on the County’s e mail policy, which, as stated above, (i) provided that messages would be automatically deleted after 90 days with no further possibility of retrieval, (ii) provided that e mails should be treated as confidential by other employees and accessed only by the intended recipient, and (iii) anticipated some personal use of the e mail system.

Even though respondents had a legitimate expectation of privacy in their e-mails, they could still be disclosed if such disclosure served a “compelling state interest.”  The Court held that disclosure here may serve a compelling state interest, namely:

such disclosure may help explain why Baker promoted Sale to her current position, why she received substantial increases in salary as well as overtime pay, and why she has not been terminated despite allegations she embezzled money.

As a result of its determination, the Court of Appeals remanded the case to the Trial Court for consideration of the appropriate amount of disclosure, if any, necessary to achieve these compelling state interests.  In making this determination the trial court was instructed to follow Martinelli, which permits only such “necessary disclosure” as “is least intrusive . . . to the [individuals] right to confidentiality.”

It is important to note a distinction apparently drawn by the Court between the limited disclosure necessary for governmental review of the charges advanced against the respondent officials, and the more public disclosure sought by the Media.  Said the Court:

Baker and Sale contend they had a legitimate expectation of privacy because, although they recognized that the contents of their e-mails could be disclosed to the county, they had no basis to believe that the e-mails would be disseminated to the public.

*         *         *

[W]e conclude that even though Baker and Sale did not have a reasonable expectation that their e-mails would not be disclosed at all, they still had a reasonable expectation under CORA that there would be more limited disclosure of at least their sexually explicit e mails.

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