COMPLAINT (With Application for Show Cause Order)

DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO Court Address: 1437 Bannock Street Denver, CO 80202 Plaintiffs: DENVER POST CORP., a Colorado corporation, doing business as The Denver Post; and KAREN CRUMMY, a Colorado citizen v. Defendant: BILL RITTER, Governor of the State of Colorado Attorneys for Plaintiffs: 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 COURT USE ONLY Case Number: Division: COMPLAINT (With Application for Show Cause Order) Plaintiffs Denver Post Corp., doing business as The Denver Post, and its staff writer Karen Crummy, collectively herein The Post, through their undersigned counsel at Levine Sullivan Koch & Schulz, L.L.P., for their Complaint in this civil action, state as follows: Introduction In this civil action under the Colorado Open Records Act ( CORA ), 24-72-201, et seq., C.R.S., the plaintiffs seek access to cellular telephone billing statements containing records of calls to and from the cellular telephone that is used by Colorado Governor Bill Ritter ( the

Governor ) for most of the public business conducted over the telephone by the Governor. The plaintiff also seeks a declaration of the rights and duties of the parties going forward pursuant to Rule 57 of the Colorado Rules of Civil Procedure and the Colorado Declaratory Judgment Act, 13-51-105, C.R.S. As more fully set forth below, these public records have been withheld by Governor Ritter on the grounds that (1) they are not public records subject to CORA; (2) alternatively, that disclosure of the records would do substantial harm to the public interest by invading the Governor s privacy; and (3) that disclosure would be unduly burdensome. The defendant s assertion of these grounds for denial of access to the records in issue is not supported in fact or law, and as a result, the documents should not have been withheld from public access. Thus, the records should be ordered released, and reasonable attorney s fees awarded, to The Post pursuant to 24-72-204(5), C.R.S. Jurisdiction & Parties 1. This Court has jurisdiction over the claims herein under the CORA, 24-72- 204(5), C.R.S., and under Article VI, Section 9(1) of the Colorado Constitution. 2. Plaintiff Denver Post Corp. is a Colorado corporation that publishes The Denver Post newspaper, a daily publication of general circulation throughout the City and County of Denver and the surrounding region, covering matters of public concern for readers in Colorado and beyond. 3. Plaintiff Karen Crummy is a citizen of the State of Colorado, and is employed as a staff writer by The Post. 4. Plaintiffs are persons as that term is defined by the CORA, 24-72-202(3), C.R.S., and as such, they have standing to bring a claim for access to public records under the CORA, and for an award of their reasonable attorneys fees thereunder. 5. The Governor is sued in his capacity as custodian of the public records that are the subject of this action. Plaintiffs Request for, and the Defendant s Denial of, Access to Public Records 6. On July 6, 2008 and July 28, 2008, The Post, through its employee Karen Crummy, delivered written requests to the defendant, through his authorized representatives, for access under the CORA to the following documents: [T]he itemized phone bill from Governor Ritter s personal cell phone for January and February 2007 [that the Governor] uses... for state business... [insofar as such bill reflects] calls for anything relating to state business and state employees. 2

Public records in the possession of the Governor or the Governor s Office... [consisting of] cellular phone bills for the months of January 2007 through July 2008, inclusive, reflecting calls placed or received during normal business hours, 8:00 a.m. to 6:00 p.m. Mondays through Fridays, by Gov. Bill Ritter related to his work as Governor. A true and correct copy of the two requests by Plaintiffs are attached hereto, and incorporated, as Exhibit A and B. 7. After the Governor s representative, Evan Dreyer (see Ex. A), initially denied the plaintiffs first request, the plaintiff, by its attorneys, on July 8, 2008 wrote Mr. Dreyer, contesting Mr. Dreyer s indication that the cell phone records in question were not public records, and providing notice of intent to file an application under CORA, as required by 24-72-204(5), C.R.S. A true and correct copy of this letter is attached and incorporated as Exhibit C. 8. Thereafter, the Governor, through his chief legal counsel, Thomas M. Rogers III, on July 11, 2008 and July 31, 2008, provided the Governor s formal written responses denying both requests, insofar as they sought records for the cellular telephone use by the Governor on official business but billed to the Governor s private account. A true and correct copy of the defendant s letters of July 11 and July 31, 2008 are attached here to as Exhibits D and E 9. In response to another request for access to phone bills reflecting the official business of the Governor, the Governor s office provided the plaintiffs records of his cellular telephone/blackberry account paid for the by State, associated with a Blackberry issued by the State to the Governor. Those records demonstrated that (with one month s exception), the vast bulk of the Governor s official business conducted by telephone has been conducted through use of the cellular telephone billed to the Governor s private account. 10. On August 3, 2008, the plaintiffs, through their attorneys, wrote the defendant, through Mr. Rogers, advising of their intent to file this Complaint and Application for an Order to Show Cause, pursuant to CORA based upon both the July 8th and the July 28th requests. A true and correct copy of the August 3rd letter by counsel is attached as Exhibit F. This letter provided the required statutory notice pursuant to 24-72-204(5), C.R.S., that absent production of the requested records, it intended to seek judicial relief in this Court. 11. The Governor continues to refuse to provide access to the requested public records. Applicable Statutory Provisions 12. Under the CORA, any person may request access to inspect and obtain a copy of any public record. See 24-72-203(1)(a), C.R.S. 3

13. Under the CORA, a public record is defined as any writing made, maintained or kept by... any... political subdivision of the state... for use in the exercise of functions required or authorized by law or administrative rule. See 24-72-202(6)(a)(I), C.R.S. This provision makes clear that records that involve no expenditure of public funds are nevertheless public records, and are subject to inspection under the CORA. 14. Under the CORA, if a document constitutes a public record, the custodian may deny access only if there is a specific exception that requires or permits the withholding of that record. See 24-72-203(1)(a), C.R.S. 15. Under the CORA, all exceptions to the statutory mandate of public access must be construed narrowly. See Sargent Sch. Dist. No. RE-33J v. Western Servs. Inc., 751 P.2d 56, 60 (Colo. 1988). 16. The Governor s position that the subject telephone records are not public records under the above-quoted definition is not well taken. The Governor s cell phone is used in the exercise of functions required or authorized by law or administrative rule, and the records of its use are likewise generated as a by-product and contemporaneous records of the conduct of public business. The records are regularly furnished to the Governor by his cell phone provider, and maintained or kept by him for a period of time, and in any event remain available to him upon request from the carrier. The Governor has confirmed that some or all of the records requested are in his possession, custody, and control. It is obvious that if any high ranking government executive may privatize his conduct of public business by establishing a private account or dealing with private providers of communications technologies, it would allow government officials to unilaterally create a vast and unacceptable loophole in the requirements of CORA. 17. The Governor s responses of July 11 and July 31, 2008 recite that the Governor s principal concern for resisting disclosure of the subject cell phone records is concern over further erosion of the zone of public employees privacy... Under CORA, there is no specific exemption for disclosures that would unduly invade personal privacy. Instead, the protection for privacy interests (not already encompassed in existing statutory exemptions, such as personnel files ) is deemed included in the catch-all provision contained in 24-72-204(6)(a), C.R.S., which places the burden of proof upon the custodian to show that disclosure of the contents of said record would do substantial injury to the public interest. The Governor s claim of personal privacy does not meet this standard. As the Governor acknowledges, the intrusiveness of disclosure of mere telephone numbers is minimal. Moreover, records reflecting the Governor s conduct of his official business as Governor are not entitled to any reasonable expectation of personal privacy; indeed, the General Assembly and past Governors have expressly determined, in the CORA, that all writings concerning the Governor s conduct of the people s business are public records, not private ones, to which the People of Colorado have a statutory right of access. 18. For these same reasons, the Governor s argument concerning difficulty of redaction of telephone numbers reflecting purely private calls is not well taken. If the Governor elects to use the telephone that is primarily utilized for public business for personal calls, the 4

Governor must assume either the risk of disclosure or the burden of identifying and redacting calls that are unrelated to public business. 19. Under the CORA, any person whose request for access to a public record is denied may apply to the District Court for an Order to Show Cause directing the custodian of the public record to show cause why the record should not be made available for public inspection. See 24-72-204(5), C.R.S. 20. Under the CORA, the Court must schedule the hearing on an Order to Show Cause at the earliest time practical. See id. 21. Under the CORA, following a Show Cause Hearing, if the Court finds that the requested public record should be made available for public inspection, the Court must award the applicant his or her reasonable attorney s fees in connection with the effort to obtain access to the public record. See id. FIRST CLAIM FOR RELIEF Request for Access to Public Record under CORA ( 24-72-204(5), C.R.S.) 22. Plaintiffs incorporate the allegations of previous paragraphs of this Complaint as though fully set forth here. 23. The documents requested by The Post were made, maintained, or kept by the State for use in the exercise of functions authorized by law, and are therefore public records. See 24-72-202(6)(a)(I), C.R.S. 24. The defendant is unable to establish that the documents requested by The Post are exempt from disclosure as constituting an undue invasion of personal privacy, such that disclosure would cause substantial harm to the public interest, pursuant to 24-72-204(6)(a), C.R.S. 25. Because of the minimal intrusion upon privacy interest that would result from disclosure of the Governor s cell phone records reflecting calls he made or received in his official capacity as Governor, there is no reason for the Court to permit or require redaction of such records to eliminate the telephone numbers of persons called or calling the Governor on non-official business, given the acknowledged difficulty of accurately making such determinations. In the alternative, redaction should be permitted only as the Governor in good faith is willing to certify that the omitted information does not relate to official business. 26. Because the Governor has denied a valid request under CORA for inspection of requested public records, The Post is entitled to an order from the Court directing the Governor to show cause at the earliest practicable time why it should not provide access to the requested public records. See 24-72-204(5), C.R.S. 5

27. The Post gave the Governor more than three days notice, pursuant to 24-72- 204(5), C.R.S., prior to filing this Complaint. 28. The Post is entitled to an award of its reasonable attorneys fees and costs in enforcing its right of public access to these public records, pursuant to 24-72-204(5), C.R.S. SECOND CLAIM FOR RELIEF Request for Declaratory Judgment Under C.R.C.P. 57 and 13-51-105, C.R.S. 29. Plaintiffs incorporate the allegations of previous paragraphs of this Complaint as though fully set forth herein. 30. The plaintiffs are entitled to a declaratory judgment, pursuant to C.R.C.P. 57 and 13-51-105, C.R.S., determining that on a going-forward basis, the plaintiff and the public is entitled to inspect and/or copy, upon proper request, pursuant to the CORA, copies of the billing records, reflecting telephone numbers called and telephone numbers from which calls were received, of the Governor of the State of Colorado, for any telephone used by the Governor for public business in whole or substantial part. Application For Order To Show Cause A. Pursuant to 24-72-204(5), C.R.S., Plaintiffs are entitled to and do hereby apply for an Order To Show Cause, directing that the Governor show cause why the requested public records should not be disclosed. As required by the CORA, the Court should set the date of the show cause hearing at the earliest time practical. B. A proposed Order to this effect is attached, for the Court s convenience. Prayer For Relief WHEREFORE, pursuant to 24-72-204(5) and 13-51-105, C.R.S., Plaintiffs pray that: A. The Court forthwith enter an Order directing Governor Bill Ritter to show cause why he should not allow inspection of the requested public records as described in this Complaint and Application for Order to Show Cause; and B. The Court conduct a hearing pursuant to such Order at the earliest practical time, at which time the Court may make the Order to Show Cause absolute. C. The Court enter a declaratory judgment finding that the requested public records are subject to disclosure and not exempt under the CORA or any other law, and they are subject to public access pursuant to the Plaintiffs valid request under the CORA. 6

D. The Court award Plaintiffs their costs and reasonable attorneys fees associated with the preparation, initiation, and maintenance of this action, as mandated by 24-72-204(5), C.R.S. E. The Court award such other and further relief as the Court deems proper and just. Respectfully submitted this 11th day of August, 2008. By s/ Thomas B. Kelley Thomas B. Kelley Steven D. Zansberg Christopher P. Beall LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Attorneys for Plaintiffs The Denver Post Corp., d/b/a The Denver Post and Karen Crummy THIS COMPLAINT WAS FILED WITH THE COURT THROUGH THE LEXIS/NEXIS FILE-AND-SERVE ELECTRONIC FILING PROCEDURES, UNDER C.R.C.P. 121(C), 1-26. AS REQUIRED BY THOSE RULES, THE ORIGINAL SIGNED COPY OF THIS PLEADING IS ON FILE WITH LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Plaintiffs Address The Denver Post 101 W. Colfax Ave., #600 Denver, CO 80202 7