I

SUPREME COURT, STATE OF COLORADO Court Address: 101 West Colfax, Suite 800

Denver, Colorado 80202

Colorado Court of Appeals, Case No. 08-CA-2659

Disaict Court, City and County of Denver Case No. 08-CV-7083 The Hon. Morris B. Hoffman, presiding

Plaintiffs/Petitioners: DENVER POST CORP., a Colorado corporation, doing business as The Denver Post; and KAREN CRUMMY, a Colorado citizen

v.

Defendant/Respondent: BILL RITTER, Governor of the State of Colorado

Attorneys for Plaintiffs/Petitioners: Thomas B. Kelley,# 1971 Steven D. Zansberg, #26634 Christopher P. Beall, #28536 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. 1888 Sherman Street, Suite 370 Denver, Colorado 80203 Telephone No.: (303) 376-2400 Facsimile No.: (303) 376-2401 tkelley@lskslaw.com szansberg@lskslaw.com cbeall@lskslaw.com

FILED IN THE --­SUPREME COURT

OF THE ST ATE OF COLORADO SUSAN J. FEST AG CLE:~K

A COURTUSEONLY A

Case Number: 1 O-SC-94

PETITIONERS' REPLY BRIEF

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28

and C.A.R. 32, including all formatting requirements set forth in these rules.

Specifically, the undersigned certifies that:

The brief complies with C.A.R. 28(g): it contains 5,666 words in those

portions subject to the Rule.

The brief complies with C.A.R. 28(k): it contains under a separate heading

( 1) a concise statement of the applicable standard of appellate review with citation .

to authority; and (2) a citation to the precise location in the record ("CD _"), not

to an entire document, where the issue was raised and ruled upon. .

By~~~~~~~~~~ Thomas B. Kelley, # 1971 Steven D. Zansberg, #26634 Christopher P. Beall, #28536

Attorneys for Plaintiffs/Petitioners, THE DENVER POST CORPORATION and KAREN CRUMMY

TABLE OF CONTENTS

TABLE OF AUTHOR1TIES ................................................................................... iii

INTRODUCTION ..................................................................................................... 1

ARGU1\1ENT ............................................................................................................ 3

THIS COURT'S REVIEW IS DE NOVO AND NO EVIDENCE NEED BE PRESENTED BY THE POST UNDER RULE 12(b)(5) ......................... 3

IN DETERMINING WHETHER THE COURT OF APPEALS ERRED, THIS COURT MUST ACCEPT THE ALLEGATIONS OF THE FIRST AMENDED COMPLAINT AS TRUE ...................................... 5

THE GOVERNOR'S ATTEMPT TO SHIFT THE BURDEN OF PROOF ON THE ISSUE "FOR USE IN THE EXERCISE OF OFFICIAL FUNCTIONS" SHOULD BE REJECTE .................................... 6

THE STIPULATIONS DO NOT SAY WHAT THE GOVERNOR CLAIMS T!IBY DO ....................................................................................... 7

THE GOVERNOR'S PROPOSED INTERPRETATION OF THE STATUTORY TERM "MAKE" SHOULD BE REJECTED AS OVERLY RESTRICTIVE AND CONTRARY TO LEGISLATIVE INTEN .......................... 8

CASES DECIDED UNDER THE FEDERAL FOIA ARE IN APPOSITE ................................................................................................ 13

THE ALLEGATIONS OF THE COMPLAINT AND FIRST AMENDED COMPLAINT SHOW THAT THE GOVERNOR HKEPT" THE RECORDS IN HIS OFFICIAL CAP ACIT ......................................... 15

THE COURT NEED ONLY CONSIDER THE CONTEXT, NOT THE CONTENT OF TI-:IE RECORDS ................................................................. 19

CONCLUSION ........................................................................................................ 23

11

TABLE OF AUTHORITIES

Cases

Bagby v. Sch. Dist. No. l, 528 P.2d 1299 (Colo. 1974) ................................................................................... 8

Bd. of County Comm 'rs v. Costilla County Conservancy Dist., 88 P.3d 1118 (Colo. 2004) ..................................................................................... 9

Bloomberg LP. v. SEC, 357 F. Supp. 2d 156 (D.D.C. 2004) ..................................................................... 14

Bureau of Nat'! Affairs v. DOJ, 742 F.2d 1484 (D.C. Cir. 1984) ........................................................................... 14

Colonial Bank v. Colo. Fin. Serv. Bd., 961P.2d579 (Colo. App. 1998) .......................................................................... 13

Denver Post Corp. v. Ritter, 230 P.3d 1238 (Colo. App. 2009) ........................................................................ 20

Denver Pub! 'g Co. v. Bd. of County Comm 'rs, 121P.3d190 (Colo. 2005) ................................................. 2, 4, 6, 8, 19, 20, 21, 22

Detroit News, Inc. v. City of Detroit, 516 N.W.2d 151 (Mich. Ct. App. 1994) ................................................................ 7

Downing v. Brown, 3 Colo. 571 (1877) ............................................................................................... 19

Freedom Newspapers, Inc. v. Tollefson, 961 P .2d 1150 (Colo. App. 1998) ........ : ............................................................... 13

Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005) ................................................................... 4, 5, 14, 21

Indus. Comm 'n v. Milka, 410 P.2d 181(Colo.1966) .............. ., ..................................................................... 5

lll

O'Neill v. City o/Shore/ine, 240 P.3d 1149 (Wash. 2010) ............................................................................... 11

Office of the Governor v. Washington Post Co., 759 A.2d 249 (Md. App. 2000) ........................................................................... 15

People v. Corr, 682 P.2d 20 (Colo. 1984) ........ : ............................................................................ 1 O

People v. Mason, 989 P.2d 757 (Colo. 1999) ................................................................................... 1 O

People v. McKunes, 124 Cal. Rptr. 126 (Cal. Ct. App. 1975) .............................................................. 10

People v. Trujillo, 521 P .2d 769 (Colo. 1974 ) ................................................................................... 19

PG Publ'g Co. v. City of Washington, 638 A.2d 422 (Pa. Commw. Ct. 1994) .................................................................. 7

Ryanv. DOJ, 617 F.2d 781 (D.C. Cir. 1980) ............................................................................. 15

Sibille v. Fed. Reserve Bank, 770 F. Supp. 134 (S.D.N.Y. 1991) ...................................................................... 14

Summers v. DOJ, 934 F. Supp. 458 (D.D.C. 1996) .......................................................................... 15

Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993) ..................................................................................... 3

Wick Commc 'ns Co. v. Montrose County Bd. of County Comm 'rs, 81 P.3d 360 (Colo. 2003) ......................................................... 8, 15, 16, 19, 20, 23

Zubeck v. El Paso County Retirement Plan, 961P.2d597 (Colo. App. 1998) ............................................................................ 9

IV

Statutes

§§ 24-72-201, et seq., C.R.S. (20), Colorado Open Records Act.. ......................... 13

§§ 24-72-301, et seq., C.R.S. (2008), Colorado Criminal Justice Records Act ..... 14

Rules

C.R.C.P. 12(b)(5) ...................................................................................................... I

Regulations

47 C.F.R. § 42.6 (2009) ........................................................................................... 17

Other Authorities

Cell phones aid in solving crime, Augusta Chronicle, Jan. 12, 2009, http://chronicle.augusta.com/stories/2009/01/l2/met_ 507344 ........................... 11

Fred Galves, Christine Galves, Ensuring The Admissibility Of Electronic Forensic Evidence And Enhancing Its Probative Value At Trial 19-SPG Crim. Just. 37, 38 (2004) ..................................................................................... 11

Larry Dignan, Digital Fingerprints Led Feds to Zazi: Investigators Followed a Digital Path to Track Down the Incriminating Evidence on Suspected Terrorist, CBS News, available at http://www.cbsnews.com/stories/2009/09/25/tech/ main53391l2.shtmL .......... 11

Legis. Counsel of Colo. Gen. Assembly, Open Pub. Records for Colo. 1-2 (Research Pu bl 'n No. 126, 1967) .................................................................... 3, 21

Oxford American Desk Dictionary (1998) ........................................................ 18, 19

Webster's New Twentieth Centwy Dictionary (unabridged, 2d ed.) ...................... 18

v

INTRODUCTION

Nothing in the Governor's Answer Brief ("Answer Br.") controverts these

factual allegations of the Post's complaint: the records at issue (which document

every cell phone conversation the Governor had, during regular business hours, in

which he discussed public business) were generated at the initiative and direction

of the Governor, while acting in his official capacity; thereafter, the Governor

retained the records (itemized phone logs) for reasons other than to effectuate

payment of those bills. One (indeed, the only) logical inference from these facts

(the Governor has suggested no other such inference) is that the Governor "kept"

the records to determine with whom he spoke on what occasion, just as people

routinely make use of their itemized call logs. Thus, under C.R.C.P. 12(b)(5), The

Post met its burden of showing that the records were both "made" and "kept" by

the Governor in his official capacity.

In his Answer Brief, the Governor attempts to avoid the procedural posture

in which this case arises, and tries, repeatedly, to shift the burden of proof to The

Post on issues on which it does not bear any such burden. First, the Governor

suggests that this Court should disregard the allegations of the First Amended

Complaint tendered by The Post, despite the fact that the Court of Appeals

affirmed the District Court's finding that allowing those allegations would be

futile. Second, the Governor suggests that The Post bears the burden of proving

that documents he made and/or kept in his official capacity were also made and/or

kept "for use" in the conduct of official business. However, this Court's cases are

clear that The Post's only burden, at the initial pleading stage, was to allege

sufficient facts to show that the Governor made and/or kept the records in his

official capacity. (It is the Governor, not The Post, who bears the burden of proof

on the "for use in the exercise of' element.)

Equally untenable is the Governor's arguments that the words "made" and

"for use" in the Open Records Act should be construed narrowly to mean "wrote,

or "authored," and "used." Were the Court to adopt the Governor's proposed

definitions of these terms, it would violate the well-settled precedents that remedial

statutes, such as the Open Records Act, must be given a broad and liberal

construction in favor of the beneficiary of such statutes, the public.

Here, the records at issue document the conduct of this State's highest

elected public servant acting in his official capacity. As this Court has repeatedly

recognized, the overarching purpose of the public records law is to provide this

state's citizens with the opportunity to observe and monitor the workings of their

government: "' [p]ublic business is the public's business.'" Denver Publ'g Co. v.

Bd. of County Comm 'rs, 121 P .3d 190, 196 (Colo. 2005) (quoting Legis. Counsel

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of Colo. Gen. Assembly, Open Pub. Records for Colo. 1-2 (Research Publ'n No.

126, 1967) ("Public Records Report"). Thus, this Court should reject the

Governor's assertion that 44a record does not become a public record merely

because it discloses something about the workings of government." (Answer Br. at

38 (emphasis added).) To the contrary, when a record is generated, and thereafter

kept, by a government official, which documents and memorializes the conduct of

'4public business," such record does become a 44public record." (Whether the

44public record" is subject to an exemption from disclosure presents a separate and

distinct issue, not raised by this appeal.)

ARGUMENT

THIS COURT'S REVIEW IS DE NOVO AND NO EVIDENCE NEED BE PRESENTED BY THE POST UNDER RULE 12(b)(5)

The Govemor suggests (for the first time in this action) that the Cou11's

review of the judgment below should be governed by the burden-shifting protocol

associated with the assertion of governmental immunity. (Answer Br. at 17-18

(citing Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.

1993)).) The Govemmental Immunity Act has no bearing on this action; the case

at bar arises under Colorado's Open Records Act ("CORA"), which explicitly

subjects govemmental entities, including the Governor, to suit upon denial of

access to "public records." This Court has already made clear that in such cases,

3

the records requestor (or "applicant" under the statute) need only plead facts that

show the records requested were "likeli' made, maintained, or kept by a

governmental official acting in an official capacity. Harris v. Denver Post Corp.,

123 P.3d 1166, 1172 (Colo. 2005) ("In what capacity the custodian makes,

maintains or keeps the record is the linchpin to this inquiry."). Once the applicant

has done so, "the burden then shifts to the custodian to show whether the items in

contention 'relate to the performance of public functions." Id. (quoting Denver

Publ'g Co., 121 P.3d at 191).

The same approach should be applied in this case, in which the District

Court ruled upon a motion to dismiss pursuant to C.R.C.P. 12(b)(5); this court

reviews such an order de novo, and must accept all of the well-pleaded allegations

of fact in the plaintiffs' Complaint as true. Here, the Complaint included detailed

and specific averments that the Governor participated in the process of "making"

the phone records at issue each time he used the phone in performing official

functions as the Governor. (See Comp I. ii 16, CD 4; l st Am. Compl. ("F AC")

~~ 24-25, CD 166.) The Complaint and FAC also contained allegations that the

Governor kept the records because of their utility as a record of official conduct

and not solely to pay his phone bills. (F AC ~ 28, CD 166.) No more need be

4

pleaded for the applicant to make the "threshold showing'' that this Court has

described as not Heverly burdensome." Harris, 123 P.3d at 1172.

IN DETERMINING WHETHER THE COURT OF APPEALS ERRED, THIS COURT MUST ACCEPT THE ALLEGATIONS OF THE FIRST AMENDED COMPLAINT AS TRUE

The Governor argues that the allegations of The Post's FAC should be

disregarded because the trial court determined they were futile and the Court of

Appeals, after considering those factual allegations, affirmed the District Court's

denial of The Post's motion for leave to amend its original complaint. (Answer Br.

at 19-20 & n.l.) Clearly, the allegations of the FAC which formed the basis of the

Court of Appeals' ruling below, are within the ambit of the question accepted for

certiorari review. If a denial of leave to amend on grounds that the proposed

amendment would be futile did not permit the reviewing court to consider the

proposed amended allegations, such a ruling would effectively be unreviewable.

(See Opening Br. at 5 n.6.)

The Governor also asks the Court to disregard the letter from his (former)

chief legal counsel dated July 28, 20 I 0, that was appended to the Opening Brief.

(See Answer Br. at 21.) This Court may take judicial notice of matters of public

record, see Industrial Commission v. Milka, 410 P.2d 181, 183 (Colo. 1966» such

5 .

as official correspondence from the Governor's legal counsel acting in his official

capacity. 1

THE GOVERNOR'S ATTEMPT TO SHIFT THE BURDEN OF PROOF ON THE ISSUE "FOR USE IN THE EXERCISE OF OFFICIAL FUNCTIONS" SHOULD BE REJECTED

The Governor mistakenly argues that The Post bore the burden of proving

that the phone records at issue are likely "to be used for a function 'required or

authorized by law or administrative rule."' (See Answer Br. at 23-24.2 (citation

omitted)) This attempt to shift the burden to The Post on the second step- which

arises only after The Post has met its initial "threshold burden" of showing that the

phone records were made, maintained, or kept in the Governor's official capacity -

is contrary to established law. See Denver Publ'g Co., 121 P.3d at 199.

1 Curiously, the Governor's counsel does not address the substance of the letter (clarifying that all of the Governor's official eel I phone use after July 2008 occurred on his "personal" cell phone) which contradicts the Governor's stipulation of fact to the District Court (stating that most, but not all, of the Governor's official cell phone use occurred on his "personal" cell phone). (See Opening Br. at 6 n.7.)

2 (See also Answer at 26 & 38.) Indeed, the Governor seeks to collapse the two issues - the capacity in which a record is made, maintained, or kept, and the use for which a document was intended- into a single inquiry. (See Answer at 38 (suggesting that "the use for which a document is made, maintained, or kept determines the capacity in which the custodian makes, maintains, or keeps a document").) If this were true, the Court's prior precedents, including Denver Publ'g Co. v. Bd. of County Comm'rs, 121P.3d190 (Colo. 2005), would need to be reversed.

6

The only issue presently before this Court is whether the allegations of the

Complaint and F AC, taken as true, establish that the Governor made, or maintained

or kept the records at issue in his official capacity. (See Answer Br. at 24 ("If the

Governor makes, maintains, or keeps the telephone records in his official capacity

as Governor, then the records could be public records.").) Assuming that question

is answered in the affirmative, as The Post urges, then the Governor may seek to

meet his burden of proof on remand.

THE STIPULATIONS DO NOT SAY WHAT THE GOVERNOR CLAIMS THEY DO

The Governor claims that because it was stipulated that the telephone bills at

issue "are generated by the service provider," The Post is precluded from arguing

that the Governor played any role in '4making,' those records.3 (Answer Br. at 24-

25.) Notably, the stipulated fact cited does not contain the word "solely." Both the

complaint and the FAC alleged, with particularity (not generalizations or

speculation), that the Governor played a necessary and indispensable role in the

process of generating the itemized ca11 logs that are the subject of The Post's

3 Neither of the two out-of-state authorities cited by the Governor hold, upon resolving a contested issue, that phone companies, exclusively, are responsible for generating the "call log" portion of monthly billing statements. See Detroit News, Inc. v. City of Detroit, 516 N. W.2d I 51, 153 (Mich. Ct. App. 1994); PG Publ'g Co. v. City of Washington, 638 A.2d 422, 426 (Pa. Commw. Ct. 1994).

7

request. (See Compl., 16, CD 4; FAC ,, 24-25, CD 166.) Under C.R.C.P.

12(b)(5), those allegations must be accepted as true.

THE GOVERNOR'S PROPOSED INTERPRETATION OF THE STATUTORY TERM "MAKE" SHOULD BE REJECTED AS OVERLY RESTRICTIVE AND CONTRARY TO LEGISLATIVE INTENT

The Governor urges the Court to interpret the statutory te1m "made"

narrowly, to mean only to "author," "write," or "compose" a document. (Answer

Br. at 27-28; but see Opening Br. at 14 (noting several more expansive definitions

of "make" from English dictionaries, including "to cause; bring about").) The

adoption of the Governor's proposed narrow construction of that term 4 would be

contrary to this Court's precedents that require that "remedial" statutes, like CORA

(and the closely related Open Meetings Law), should be given a liberal

construction in favor of openness. See Bagby v. Sch. Dist. No. I, 528 P.2d 1299,

1302 (Colo. 1974) (holding that the "Public Meetings" law is a "remedial,, statute,

and "[ a]s a rule, these kinds of statutes should be interpreted most favorably for

the beneficiary, the public") (citation omitted) (emphasis added); Denver Pub/ 'g

Co., 121 P.3d at 200 (construing the term "public record" by looking to the

overarching objective of the Act as set forth in the Public Records Report, which

declared that "[p}ublic business is the public's business"); cf Bd. of County

4 The Governor's proposed narrow construction of the term Hf or use,, is addressed infra at 18-19.

8

Comm 'rs v. Costilla County Conservancy Dist., 88 P.3d 1118, 1195 (Colo. 2004)

(holding that the Open Meetings Law "should be construed as broadly as possible

to increase government transparency"); Zubeck v. El Paso County Retirement Plan,

961 P.2d 597, 600 (Colo. App. 1998) (applying CORA and the Open Meetings

Law in tandem and construing their definitions broadly).

The Governor suggests that adopting The Post's position - as alleged in the

F AC, that the Governor's knowledge and intention that his official-capacity phone

calls shall be memorialized in an itemized log of such calls (i.e., at his behest) by

the phone company- would make a mockery of the term "make," and would lead

to a host of purportedly "absurd" results. (Answer Br. at 28-29.5) However, it is

the Governor's position that cannot be reconciled with common sense and

established precedent. If the Governor's view were correct - that one who makes a

phone call does not also "make" the record of the phone call in the hands of the

phone company - then a phone caller would have no standing to complain when

5 It is no more "absurd" to suggest that the Governor "makes" a record of his phone call every time he uses a phone, "with knowledge and intent" that the phone company generate such itemized call logs, than it is "absurd" to suggest that a person "makes" a record of his usage of a credit card every time he tenders that card for use in purchasing products or services, or that he "makes" a record of the date, time, and amount of gas he purchases when he fills the tank of his car and then hits the "yes" button on the gas pump when asked if he wishes to receive a receipt. (See Opening Br. at 18 (listing other examples where parties' conduct intentionally generates a record of that conduct).)

9

the government sought to obtain such phone call records, by search warrant or

subpoena, from the phone company; in the Governor's view, the records would be

information generated exclusively by the phone company. But see People v. Corr,

682 P.2d 20 (Colo. 1984) (holding that the person who made the phone calls has a

constitutionally protected right to challenge the government's seizure of the

records memorializing those calls in the possession of the phone company); People

v. Mason, 989 P.2d 757 (Colo. 1999) (same). Indeed, phone call logs in the

possession of a phone company are the "papers" or "effects" of the phone caller,

under this Court's precedents, precisely because the phone caller played the most

meaningful role in "making" those records when he or she used the phone and

generated the information that was automatically recorded in them. See also

People v. McKunes, 124 Cal. Rptr. 126, 128 (Cal. Ct. App. 1975) (rejecting the

government's argument that "the records were those of the telephone company and

not of [the] defendant").

Contrary to the Governor's argument, there are myriad instances (none of

them '~absurd") in which records memorializing human conduct, though not

"written" or "authored" by the user, are commonly understood, and have been

IO

judicially recognized,6 as having been "made" by the user, just as a person

"makes" a fingerprint without writing or authoring. 7

As was noted in the Opening Brief, records that are outside the possession or

control of the government (e.g., newspaper articles reporting on the Governor's

press conference) are not "public records" because they are not dictation -

documents "made" by the Governor - and are not maintained and kept by the

government. That, however, does not change the fact that as commonly

understood, the Governor makes a recording or writing that contains his spoken

6 See Br. of Amici Curiae in Supp. of Denver Post Corp. & K. Crummy at 22-24 (collecting authorities from other jurisdictions holding that metadata in government records, including e-mails, are public records); see also O'Neill v. City of Shoreline, 240 P.3d 1149, 1153-54 (Wash. 2010) ("Metadata may contain information that relates to the conduct of government and is important for the public to know.").

7 See, e.g., Fred Galves, Christine Galves, Ensuring The Admissibility Of Electronic Forensic Evidence And Enhancing Its Probative Value At Trial 19-SPG Crim. Just. 37, 38 (2004) ("As we use computers, personal digital assistants, cell phones, and other devices ... we are placing into electronic form private, sensitive, and even incriminating information .... This electronic trail can serve as powerful legal evidence against a suspected criminal, as it reveals highly probative '"digital fingerprints'"); Larry Dignan, Digital Fingerprints Led Feds to Zazi: Investigators Followed a Digital Path to Track Down the Incriminating Evidence on Suspected Terrorist, CBS News, available at http://www.cbsnews.com/stories/2009/09/25/ tech/main5339112.shtml; Preston Sparks, Cell phones aid in solving crime, Augusta Chronicle, Jan. 12, 2009, http://chronicle.augusta.com/stories/2009/0l/12/ met 507344.

11

remarks even when he does not personally write, compose, or author the written

transcription of his State of the State address.

The Governor suggests that when a customer asks a pizza maker to include

pepperoni, the customer does not thereby "make" the pizza. (Answer Br. at 31.) A

more apt analogy (admittedly outside the realm of record-making) would be if the

customer not only specifies the type of pizza she wants, but she provides the pizza

maker with all the ingredients (pepperoni, dough, sauce, spices, and cheese). The

pizza maker uses his own oven and manual labor to prepare and cook the pizza, (as

the phone company uses its equipment to generate the billing statements) but the

pizza could not be "made" without essential ingredients provided by the customer,

who would, in that scenario, be considered a participant in "making" the pizza.

In the present case, by analogy, the phone company is incapable of

generating the itemized call logs without necessary information conveyed to it by

the Governor and thereafter incorporated into the record. Just as the pizza

ingredient provider above can be said to have played a necessary role in "making"

the pizza, the Governor, too, played a necessary role in "making" the call log

po1tion of the records at issue.

12

The fact that the Governor "made" the records at issue, and did so while

acting in his official capacity, is a sufficient ground to render the itemized call logs

"likely public records."

CASES DECIDED UNDER THE FEDERAL FOIA ARE INAPPOSITE

The Governor cites several cases decided under the federal Freedom of

Information Act, 5 U.S.C. § 552 ("FOIA"), which determined that certain

telephone records were not "agency records," but instead were records of the

individual public employees. (Answer Br. at 15-17.) The Colorado Open Records

Act, §§ 24-72-20 I, et seq., C.R.S. (20 I 0) (HCORA"), defines "public records"

decidedly differently and more broadly (both textually and as interpreted by the

courts) than the language and judicial definition given to the undefined term,

"age~cy records," in the federal Freedom of Information Act.8 For example, to

qualify as an "agency record" under FOIA, a document must have been actually

"used" by an agency, Bureau of National Affairs v. DOJ, 742 F.2d 1484, 1492,

8 See Freedom Newspapers, Inc. v. Tollefson, 961P.2d1150, 1155 (Colo. App. 1998) (because texts ofFOIA and CORA differ, "we decline to consider federal case law interpreting FOIA as being persuasive [in interpreting CORA provision regarding personnel files]"); see also Colonial Bank v. Colo. Fin. Serv. Bd., 961P.2d579, 583 (Colo. App. 1998) (holding that federal law is not persuasive where text of state and federal statutes are significantly different).

13

1494 (D.C. Cir. 1984),9 whereas a "public record" under CORA (or the companion

Colorado Criminal Justice Records Act, or "CCJRA," §§ 24-72-301, et seq., C.R.S.

(2008)) must only have been "made, maintained or kept" by any governmental

employee acting in an official capacity, "for use in" the exercise of functions

authorized by law or administrative rule. See, e.g., Harris, 123 P.3d at 1169

(holding that private writings of Columbine High School killers were ''criminal

justice records" when seized by the sheriff "for use in" the criminal investigation).

Similarly, unlike the federal FOIA statute, the CORA does not limit the

definition of"public records" to documents that were shared with and used by

agency employees other than the individual government official who "made,

maintained, or kept" the documents "for use" in his own exercise of official

functions. 10 See Wick Commc 'ns Co. v. Montrose County Bd. of County Comm 'rs,

9 See also Bloomberg L.P. v. SEC, 357 F. Supp. 2d 156, 167 (D.D.C. 2004) (same).

10 But see Bureau of Nat 'I Affairs v. DOJ, 742 F.2d 1484, 1496 (D.C. Cir. 1984) (holding that documents that were actually used in the exercise of official functions by one agency employee but were not shared with other "agency employees" were not "agency records"); Sibille v. Fed. Reserve Bank, 770 F. Supp. 134, 137-39 (S.D.N.Y. 1991) (same).

14

81P.3d360, 364 (Colo. 2003) ('4if [the custodian] holds the documents in his

official capacity ... then the document is clearly a public record."). 11

The Governor's citation to the Maryland Court of Appeals case of Office of

the Governor v. Washington Post Co., 759 A.2d 249 (Md. App. 2000), where the

court held that the governor's telephone call logs for his home telephones were not

public records, is clearly inapposite. In that case, the telephone in question was a

home telephone, used by the gove1nor and all members of his family for private

business. In this case, the telephone is used exclusively by the Governor, and by

the Governor's admission is used almost exclusively for conducting public

business. (FAC,, 22 CD 166; Stipulations_of_Fact {44Stip."). ~ 3, CD 123.)

THE ALLEGATIONS OF THE COMPLAINT AND FIRST AMENDED COMPLAINT SHOW THAT THE GOVERNOR "KEPT" THE RECORDS IN HIS OFFICIAL CAPACITY

The Governor labels as 4'pure speculation" The Post's specifically pleaded

allegations that the Hpersonal" cell phone used by the Governor is a ''flat-rate"

plan, and that the Governor has continued to hold those bills long after he has paid

them. (See FAC ~~ 23, 27, CD 166; Compl. ~ 16, CD 5; Stip. ~ 7, CD 124.)

11 But see Ryan v. DOJ, 617 F.2d 781 (D.C. Cir. 1980) (holding that documents in the control of, and for use by, the Attorney General are "agency records" of the Department of Justice, even if they were not shared with other agency employees); Summers v. DOJ, 934 F. Supp. 458 (D.D.C. 1996) (telephone records, message slips, and appointment calendars of former FBI director are 4'agency records." .

15

Taking these pleaded allegations as true, it is not "pure speculation" that the

Governor must hold those records for some reason other than to effect payment of

amounts owed to the phone company. It is neither "speculation" nor "conjecture"

to allege, based upon these facts, and in light of common experience of all phone

users in the modem era, that the Governor holds on to ("keeps") these detailed

phone logs for the purpose of determining with whom he spoke and on what

occasion. 12 Indeed, this Court has previously recognized that the data contained on

such "toll logs" makes such a use self-evident, and can, in certain circumstances,

give rise to inferences as to the content of those conversations. (See Opening Br. at

21 &n.18.)

Moreover, the use that these records serve, for purposes of determining with

whom the Governor spoke about public business on which occasion, is anything

but speculative, in light of the specific and well-pleaded allegations contained in

the FAC: The Post had already asked the Governor to produce records which

12 In an unusually contorted sentence, the Governor's counsel declares that this argument must be rejected because "nothing in Wick [ Commc 'ns Co. v. Montrose County Bd. of County Comm 'rs, 81 P.3d 360 (Colo. 2003)] authorizes this Court to deconstruct the Governor's stated intention without any additional facts." (Answer at 34.) The record shows that as of October 13, 2008, the Governor has used the records in issue only to pay the accompanying bill. (Stip. ii 7, CD 124.) Nowhere in the record does the Governor state why he keeps call logs before or after the bills are paid. Nor has the Governor ever suggested any reason for keeping them after payment other than as a record of telephone calls made in his official capacity.

16

would shed light on particular conversations the Governor was reported to have

had with particular individuals, on particular matters of public business, on

particular occasions. (See FAC ~if 29, 30, CD 166-167.) In order to resolve those

questions (as well as others that routinely arise in the course of a governor's

administration) concerning conversations the Governor may, or may not, have had

with particular, identified individuals, 13 the Governor would necessarily and

unavoidably need to consult with the itemized call logs to determine whether he

did in fact speak with any individuals on the occasions specified. Indeed, this is

the very reason why federal law requires telephone service providers to maintain

copies of all toll records of subscribers for eighteen months, even after payment

has been received for such calls. See 47 C.F.R. § 42.6 (2009).

As with any record of official conduct (including the log of visitors to the

Governor's Office, which the Governor admits is a public record even if made and

kept by a private building management firm (Answer Br. at 46)), it cannot be

predicted in advance when or why it will be confronted with a question, issue, or

controversy that the record could answer. But when a question does arise over

13 Another obvious example was raised by the litigation concerning the termination by the University of Colorado of Professor Ward Churchill. In that case, former Governor Bill Owens acknowledged having spoken to CU President Betsy Hoffman about Churchill. But if Governor Owens had categorically denied having had any such contacts, his phone bills showing calls during the relevant time period would be a crucial means to substantiate or refute that assertion.

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who the Governor spoke to by telephone and when, consultation of the record is a

virtual certainty. When the existence, date, and duration of a conversation between

two telephone numbers is in issue, that inevitably prompts the question, "what do

the telephone records say?" Under CORA, the opportunity to be informed by that

record should not be available only to the Governor, at his convenience; it also

belongs to the public.

The Governor provides the Court with highly selective dictionary definitions

of the preposition "for" and the noun "use" and distills them (in combination) to

mean actual use or "indicia of use" (the meaning of the term "indicia of use" is

never explained) in the exercise of official functions, and not encompassing the

concepts of "related to" or "inherent utility." (Answer Br. at 35.) Webster's New

Twentieth Century Dictionary (unabridged, 2d ed.) defines the preposition "for" as

including ~'in favor of," "suitable to," "in the direction of," "with reference or

regard to," "in expectation of," "in quest of," among other definitions that illustrate

that the word "for" is one of the most versatile words in the English language. 14 So

too, dictionaries ascribe an equally broad range of meanings to the noun "use."

See Webster's New Twentieth Century Dictionary (defining the noun "use" as "the

14 The Oxford American Desk Dictionary (1998) contains similar synonyms for the word "for," including "in the interest or to the benefit of," "suitable or appropriate to," "regarding," "in the hope or quest of."

18

power or ability to use/' "the need, opportunity, or occasion to use/' "the quality

that makes a thing useful or suitable for a given purpose"); Oxford American Desk

Dictionary (definitions of "usen include Hability to be used," "purpose for which a

thing can be used").

The Governor asserts that the definition of''public records'' was

significantly "narrowed" in the process of drafting the original Open Records Act,

(see Opening Br. at 25-26), but the Governor acknowledges that the definition

targets "those records directly related to functions of government," (Answer Br. at

36). See Denver Publ'g Co., 121 P.3d at 191.15 Here, under the facts alleged in

the F AC, the records at issue - detailed call logs identifying with whom the

Governor spoke about public business on which occasion and for what duration -

unquestionably meet that definition.

THE COURT NEED ONLY CONSIDER THE CONTEXT, NOT THE CONTENT OF THE RECORDS

The Governor contends that The Post seeks to ignore the context in which

the records were created, and thereby "The Post asks the Court to effectively

overrule Wick and Denver Publishing Co." (Answer Br. at 43.) To the contrary, it

15 Notably, one of the principal authorities upon which the Governor relies, Downing v. Brown, 3 Colo. 571 (1877) (see Answer at 38-39), was later explained to be a case involving only ''a personal book kept by a probate judge ... which contained records not germane to his office." People v. Trujillo, 521 P.2d 769, 770 (Colo. 1974).

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is the Governor who wishes to overlook the holdings of those cases, and urges this

Court to ignore the only issue presented herein: in which capacity did the

Governor make and keep the records at issue (irrespective of the "for use"

question).16 See Denver Publ'g Co., 121 P.3d at 199 (holding that the requesting

party's burden to show that "the records at issue are likely 'public records"' is

"met if it can be shown that the records are 'made, maintained, or kept' in a public

capacity"). Once that burden has been met, as here, the Court's focus then (and

only then) shifts to the content of the records, to dete1mine whether they were

"made, maintained, or kept/or use" in the exercise of official functions. Id. In

Denver Publishing Co., the court looked at the content of the e-mail messages

exchanged by the public officials therein precisely because there was no contested

issue concerning the "public capacity" burden on the records requester: "Here, the

messages were 'maintained or kept' by Arapahoe County. As such, a closer

inquiry into the content of the message is required to determine if the messages

16 The Governor acknowledges that the "capacity" inquiry under Wick and Denver Publishing "balances the public's interest in access to information about how its government operates against privacy interests of public officials and employees." (Answer Br. at 10 (quoting the Court of Appeals opinion in Denver Post Corp. v. Ritter, 230 P.3d 1238, 1240 (Colo. App. 2009)).) Yet the Governor makes no attempt to refute The Post's demonstration (Opening Br. at 26-29) that no interests protected in those cases are implicated here, because the record in question is unquestionably a record of official conduct.

20

were 'for use in the exercise of [official] functions ... "' Id. 17 Similarly, here, the

factual allegations of the Complaint and F AC establish that the Governor both

"made" and "kept" the phone records at issue while acting in his official capacity.

Thus, without reaching the content of the records, the Court must hold that The

Denver Post has met its "threshold burden" of showing the records are "likely

public records."

Moreover, in discussing the legislative history, the Governor ignores the

Public Records Report which stated that a public official has a "duty, to keep" any

"written record of the transactions of a public officer in his office," and that "when

kept [by such officer), it becomes a public document that belongs to the office

rather than to the officer." (See Opening Br. at 34 (citing Pub. Records Report at

7).) Under this definition, the Governor has a duty to "keep" all records that

"memorial[ize]," and serve as "a written record of the transactions of' his office.

And, because he has done so, the records are deemed to be "kept" by his office, not

by him individually. Thus, as in Denver Publishing Co., the records at issue are

kept by the pub I ic entity and the "official capacity" requirement is satisfied.

17 Similarly, in Harris v. Denver Post Corp., 123 P.3d 1166, 1172 (Colo. 2005), the Court determined that the Columbine killers' journals were "kept" by Sheriff Stone in his official capacity without need to consider the contents of those writings.

21

The Governor's attempt to distinguish e-mail archives (Answer Br. at 47),

from the records at issue is disingenuous and unavailing. According to the

Governor, e-mail archives are "usually maintained on the State's computer

system." Id. However, the Governor has acknowledged that e-mails discussing

public business, that are maintained exclusively on his personal server and/or

personal messaging device, are nevertheless "public records." (See

Gov._Ritter's_Reply in_Further_Support_of_his_Mot._to_Dismiss n.l, CD 99.)

Thus, it is not the location of the communications on the government computer

system that determines its character; if a record is sent or received "in furtherance

of, or pertaining to his or her duties as an elected official, then it falls within the

definition" of a public record. Denver Publ'g Co., 121 P.3d at 200-01.

THE PREDICTED "PARADE OF HORRIBLES" WILL NOT MATERIALIZE

The rule that a substantial nexus between a record and official conduct

renders the record subject to CORA will not result in the "parade of horribles"

imagined by the Governor and amicus the Colorado Municipal League. The

application of that rule will produce results consistent with the letter and purpose

of CORA when applied to the phone records associated with the Governor's (or

any public employee's) home phone (or any other truly "personal" phone line).

(See Answer Br. at 48 (suggesting this would be the most horrible of all the

22

"parade of horribles").) In such a scenario - where almost any public employee

will make an occasional or infrequent use of a home or "personal" phone to discuss

public business (much as the airport manager did in his personal diary in Wick

Communications}-a court can readily determine from that context alone, 18 that

such records (as a whole} are not Hlikely public records." The infrequent, passing

reference to conduct of public business does not convert an otherwise private

record into a public one. Here, the undisputed facts lie at the polar opposite

extreme: the State's Chief Executive has conceded that he has used the phone at

issue to conduct 100% of the cellular telephone conversations he's had in his

official capacity as Governor. Surely the law, and the judges of this state applying

it, are capable of drawing such distinctions.

CONCLUSION

For the foregoing reasons, the judgment of the Court of Appeals should be

reversed, and the case remanded to the trial court for the Governor to meet his .

burden of showing that the telephone call logs in issue are not public records.

18 An exception would be an employee who works at home instead of going to an office.

23

"'\ .,,.).. Respectfully submitted this _rJ-._3_ day of December, 20 I 0.

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By~]:~ Thomas B. Kelley, #1971 Steven D. Zansberg, #26634 Christopher P. Beall, #28536 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. 1888 She1man Street, Suite 370 Denver, Colorado 80203 Telephone No.: (303) 376-2400 Facsimile No.: (303) 376-2401 tkelley@lskslaw.com szansberg@lskslaw.com cbeall@lskslaw.com

Attorneys for Plaintiffs/Petitioners, THE DENVER POST CORPORATION and KAREN CRUMMY

CERTIFICATE OF SERVICE

I hereby certify that on this ~W. day of December, 2010, a true and correct copy of the foregoing Petitioner's Reply Brief was served on the following counsel via U.S. Mail, postage prepaid:

JOHN W. SUTHERS, Attorney General MAURICE G. KNAIZER, Deputy Attorney General 1525 Sherman Street, 7th Floor Denver, CO 80203

Rachel L. Allen, Esq. Colorado Municipal League I 144 Sherman St. Denver, CO 80203

Mark D. Flink, Esq. Baker & Hostetler LLP 303E. 17thAve.,#1100 Denver, CO 80203

Lucy A. Dalglish, Esq. Mark R. Caramanica, Esq. The Reporters Committee for Freedom of the Press 110 I Wilson Blvd., # 1100 Arlington, VA 22202

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