Text messages sent by public officials on their personal devices discussing public business are not exempt from record requests.
That was the ruling from a Colorado court, the latest in a string of court findings confirming that text messages sent by government employees on personal cellphones are not outside the statutory definition of “public records” just because they didn’t show up on a government server.
In the most recent case, a Colorado state court judge determined that two Denver city officials had improperly withheld public records from a TV reporter when they refused to hand over text messages discussing a hailstorm at Red Rocks.
Judge Stephanie Scoville ordered the city to provide a copy of those text messages to a Channel 9 reporter and pay the TV station’s legal expenses.
“This seemed like a very clear-cut issue,” said media attorney Steve Zansberg, who sued the city on the TV channe’s behalf.
“I’ve never understood the city’s arguments, and I’m glad the court agreed with us. If the court hadn’t then it would have sent a green light to every government office in the state to conduct all of their public business by text message. And that would be absurd.”
The case centers around messages exchanged by the city’s Arts and Venues director and the Red Rocks venue manager in the aftermath of a violent hailstorm that left concert goers running for cover.
On June 21, 2023, about 100 people were injured at the outdoor amphitheater during a performance by Louis Tomlinson, former member of the band One Direction.
But when the reporter filed records requests about the incident, the city refused to produce the text messages, saying they were exchanged and resided exclusively on personal cellphones and “therefore” were not public records.
But Channel 9 argued case law from 14 other states where court rulings had determined that electronic communication found on “private” devices and email accounts were in fact public records.
Judge Scoville agreed, saying she was duty-bound to apply the plain text of CORA, which defines “public records” as any “writing” that is “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.”
