Colorado's Open Records Act (CORA) defines public records as any writing, regardless of physical form, made or received by any public agency in the course of its official business. This includes electronic records, which are subject to the same retention and disclosure requirements as other public records. In 2017, a bill was passed to clarify and expand upon the requirements for public agencies when it comes to maintaining and providing access to records.
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(6) (a) (I) “Public records” means and includes all writings made, maintained, or kept by the state, any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5-121 (2), C.R.S., or political subdivision of the state, or that are described in section 29-1-902, C.R.S., and held by any local-government-financed entity for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.
(7) “Writings” means and includes all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics. “Writings” includes digitally stored data, including without limitation electronic mail messages, but does not include computer software.
The Colorado Freedom of Information Coalition provides a white paper that addresses the difficulties faced by public agencies and governments who use modern technologies that produce electronic records. The coalition emphasizes that the content of the record is what matters when determining whether it is a public record, rather than the medium in which it is stored.
Increasingly, government agencies conduct the vast bulk of public business via digital and cloud-based platforms. Whether it is email, SMS messaging, Facebook or Snapchat, more and more public data and information is generated daily than at any previous period when pen, paper and typewriter were the primary means of written communications. With the rise and use of these technologies come new challenges to obtaining access to public records.
More and more government agencies (not merely individual employees) are contracting with third-party vendors, such as Google’s Gmail, to host all official business communications. Are such writings, maintained “in the cloud” at the behest of a government agency, “public records” of that agency? Under existing law that predated the World Wide Web, they are.
In short, the records retention schedule for electronic or digital records should turn on the content of the record, not its format or title.
The City of Englewood provides a noteworthy instance of a detailed social media policy that explicitly applies CORA to social media records in Colorado.
The content on this application, including all public comments, is subject to public disclosure under the Colorado Open Records Act.
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