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The Gazette v. Bourgerie.

2023 COA 37. No. 21CA1880. Colorado Peace Officer Standards and Training Board—Records Requests—Colorado Criminal Justice Records Act—Colorado Open Records Act—Criminal Justice Agency—Criminal Justice Records—Records Custodian Discretion.

April 27, 2023

The Invisible Institute, a journalistic production company, submitted a “public records” request to the Colorado Peace Officer Standards and Training Board (POST) for records of “all officers who have been certified by the state.” Leh, POST’s records custodian, directed the Invisible Institute to a public website containing minutes from all POST board meetings in which a peace officer was decertified but denied the remainder of the request, asserting that the request was governed by the Colorado Criminal Justice Records Act (CCJRA), CRS §§ 24-72-301 to -307, rather than the Colorado Open Records Act (CORA). Osher, a reporter with The Gazette, later submitted two requests for certain POST database records regarding certification and decertification of law enforcement officers in Colorado, which Leh granted only in part, asserting that the requests were governed by the CCJRA. Osher (on behalf of The Gazette) and the Invisible Institute (collectively, plaintiffs) applied for an order to show cause. The court concluded that POST is a criminal justice agency as defined in CRS § 24-72-302(3) of the CCJRA and ruled in favor of POST.

On appeal, plaintiffs argued that Leh abused her discretion by partially denying their records requests because CORA, rather than the CCJRA, applied. Under CORA, public records must be disclosed when requested subject to certain exceptions. The CCJRA governs the public’s access to criminal justice records. CORA’s applicability thus depends on whether the requested materials are “criminal justice records,” which turns on whether POST is a “criminal justice agency” as defined in CRS § 24-72-302(3). POST is a unit of the Criminal Justice Division within the Department of Law that establishes certification standards, certifies qualified officers, and revokes certification for officers who violate its standards. The court of appeals determined that POST is a criminal justice agency under CRS § 24-72-302(3) because it collects and stores arrest and criminal records information when it revokes a peace officer’s certification, and revoking a peace officer’s certification is one of POST’s express statutory duties. CCJRA gives the custodian of “criminal justice records” discretion to deny requests for such records in full or in part, based on a balancing of public and private interests. Here, Leh concluded that the public interest was outweighed by logistical and privacy concerns about (1) the technological challenges of producing the requested records and (2) the risk to undercover officers’ safety and the viability of their ongoing investigations. The district court found that Leh considered the public interest and balanced it against bona fide privacy interests in partially denying the requests and therefore did not abuse her discretion. The district court applied the correct legal standard by focusing on the balancing test and thus did not err.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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