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Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0040.01 MKH HOUSE BILL 98­1148

STATE OF COLORADO

BY REPRESENTATIVE Schauer;

also SENATOR J. Johnson.

JUDICIARY

A BILL FOR AN ACT

CONCERNING THE EXPANSION OF INFORMATION THAT IS REQUIRED TO BE OPEN TO PUBLIC INSPECTION.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Requires a criminal justice agency to record and maintain for public inspection certain information concerning an official action of the agency that constitutes an arrest.

Requires every criminal justice agency that investigates crimes or traffic or other accidents or that provides protective services to make and maintain incident reports concerning:

Specifies the contents that shall be contained in the incident reports. Requires criminal justice agencies to delete certain information from criminal justice records and incident reports that are open to public inspection.

Requires public records custodians to remove from public records information that is not subject to public disclosure and make available for inspection and copying that portion of such records that is open for inspection. Prohibits custodians from charging a fee for editing such information.

Directs a district court, in a proceeding brought by a plaintiff who was denied the right to inspect a public record, to award reasonable costs and attorney fees to the plaintiff if the court finds that the plaintiff is entitled to inspect any portion of the record requested. Provides that reasonable costs and attorney fees shall be awarded to the custodian of the record at issue in such proceeding if the court finds that denial of inspection was proper and that the proceeding was frivolous.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  24­72­302 (4), Colorado Revised Statutes, is amended to read:

24­72­302.  Definitions.  As used in this part 3, unless the context otherwise requires:

(4)  "Criminal justice records" means all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, which are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule PERFORMANCE OF THE ACTIVITIES LISTED IN SUBSECTION (3) OF THIS SECTION.

SECTION 2.  24­72­303 (1), Colorado Revised Statutes, is amended, and the said 24­72­303 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read:

24­72­303.  Records of official actions required ­ open to inspection. (1)  Each official action as defined in this part 3 shall be recorded by the particular criminal justice agency taking the official action. Such records of official actions shall be maintained by the particular criminal justice agency which took the action and shall be open for inspection by any person at reasonable times, except as provided in this part 3 or as otherwise provided by law. The official custodian of any records of official actions may make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his OR HER office.

(1.3)  EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE RECORD OF AN OFFICIAL ACTION CONSTITUTING AN ARREST SHALL BE OPEN FOR INSPECTION AND SHALL INCLUDE:

(a)  THE DATE, TIME, AND PLACE OF THE ARREST;

(b)  ANY RESISTANCE ENCOUNTERED BY THE CRIMINAL JUSTICE AGENCY AND ANY PURSUIT ENGAGED IN BY SUCH AGENCY IN CONNECTION WITH THE ARREST;

(c)  WHETHER ANY WEAPON WAS USED BY THE CRIMINAL JUSTICE AGENCY OR ANY OTHER PERSON IN CONNECTION WITH THE ARREST AND, IF SO, A DESCRIPTION OF THE WEAPON;

(d)  THE CHARGE, SEARCH WARRANT, OR OTHER LEGAL BASIS FOR THE ARREST;

(e)  THE IDENTITY OF THE CRIMINAL JUSTICE AGENCY, THE UNITS WITHIN THE AGENCY, AND THE PERSONS TAKING ACTION ON BEHALF OF THE AGENCY IN CONNECTION WITH THE ARREST;

(f)  THE NAME, AGE, SEX, AND LAST­KNOWN ADDRESS OF ANY PERSON CITED, ARRESTED, INCARCERATED, OR OTHERWISE SUBSTANTIALLY DETAINED IN CONNECTION WITH THE ARREST;

(g)  THE MANNER IN WHICH THE CRIMINAL JUSTICE AGENCY RECEIVED THE INFORMATION THAT LED TO THE ARREST AND THE NAMES OF THE PERSONS WHO SUPPLIED THE INFORMATION, UNLESS SUCH INFORMANT QUALIFIES FOR PROTECTION UNDER SUBSECTION (1.7) OF THIS SECTION; AND

(h)  A PHOTOGRAPH OF THE ARRESTEE TAKEN IN CONNECTION WITH THE ARREST.

(1.5)  EVERY CRIMINAL JUSTICE AGENCY THAT INVESTIGATES CRIMES, TRAFFIC ACCIDENTS, OR OTHER ACCIDENTS OR THAT PROVIDES PROTECTIVE SERVICES TO THE PUBLIC SHALL MAKE AND MAINTAIN INCIDENT REPORTS WITH RESPECT TO ANY INVESTIGATION OF A SUSPECTED CRIME, ANY REQUESTS FOR ASSISTANCE, AND ANY ACCIDENT REPORTED TO OR INVESTIGATED BY SUCH CRIMINAL JUSTICE AGENCY. SUCH RECORDS SHALL BE OPEN TO PUBLIC INSPECTION. IF A PORTION OF AN INCIDENT REPORT IS NOT OPEN FOR INSPECTION PURSUANT TO THIS PART 2, THE CUSTODIAN OF THE INCIDENT REPORT SHALL MAKE AVAILABLE THAT PORTION OF THE REPORT THAT IS OPEN FOR INSPECTION. EACH INCIDENT REPORT SHALL INCLUDE THE FOLLOWING INFORMATION TO THE EXTENT THAT IT IS APPLICABLE TO THE INVESTIGATION OF A SUSPECTED CRIME, REQUEST FOR ASSISTANCE, OR ACCIDENT:

(a)  THE DATE, TIME, AND NATURE OF THE SUSPECTED CRIME, INCIDENT FOR WHICH ASSISTANCE WAS REQUESTED, OR ACCIDENT;

(b)  THE NAME AND ADDRESS OF THE PERSON WHO REQUESTED ASSISTANCE OR REPORTED THE ALLEGED CRIMINAL ACTIVITY OR ACCIDENT UNLESS SUCH PERSON QUALIFIES FOR PROTECTION PURSUANT TO SUBSECTION (1.7) OF THIS SECTION;

(c)  THE RESPONSE BY THE CRIMINAL JUSTICE AGENCY;

(d)  A DETAILED DESCRIPTION OF THE SUSPECTED CRIMINAL ACTIVITY, INCIDENT FOR WHICH ASSISTANCE WAS REQUESTED, OR ACCIDENT INCLUDING BUT NOT LIMITED TO THE DATE, TIME, PLACE, WEAPON USED, INJURIES SUSTAINED, AND APPARENT MOTIVE;

(e)  THE NAME OF THE CRIMINAL JUSTICE AGENCY, THE UNIT OF SUCH AGENCY, AND THE INDIVIDUAL AGENCY PERSONNEL PARTICIPATING IN THE INVESTIGATION OR RESPONDING TO THE REQUEST FOR ASSISTANCE UNLESS SUCH AGENCY OR PERSONNEL QUALIFY FOR PROTECTION PURSUANT TO SUBSECTION (1.7) OF THIS SECTION;

(f)  THE NAME OF ANY OFFICER WHO USED FORCE IN CONNECTION WITH THE INVESTIGATION OR RESPONSE RESULTING IN DEATH OR SERIOUS BODILY INJURY;

(g)  THE NAME, ADDRESS, AGE, AND SEX OF ALL PERSONS WHO WERE INVOLVED IN, WHO WERE WITNESSES TO, OR WHO WERE VICTIMS OF THE SUSPECTED CRIME, INCIDENT FOR WHICH ASSISTANCE WAS REQUESTED, OR ACCIDENT UNLESS SUCH PERSON QUALIFIES FOR PROTECTION PURSUANT TO SUBSECTION (1.7) OF THIS SECTION;

(h)  ANY RESISTANCE ENCOUNTERED AND ANY PURSUIT ENGAGED IN BY THE CRIMINAL JUSTICE AGENCY IN CONNECTION WITH THE INVESTIGATION OR RESPONSE;

(i)  ANY RECORDINGS OF 911 OR OTHER CALLS FOR EMERGENCY ASSISTANCE IN CONNECTION WITH THE SUSPECTED CRIME, REQUEST FOR ASSISTANCE, OR ACCIDENT; AND

(j)  THE AGE AND SEX OF PERSONS PROTECTED UNDER SUBSECTION (1.7) OF THIS SECTION INVOLVED IN THE SUSPECTED CRIME, INCIDENT FOR WHICH ASSISTANCE WAS REQUESTED, OR ACCIDENT.

(1.7)  THE CRIMINAL JUSTICE AGENCY SHALL DELETE FROM THE RECORDS AND REPORTS REQUIRED TO BE MAINTAINED PURSUANT TO SUBSECTIONS (1) AND (1.5) OF THIS SECTION THE FOLLOWING INFORMATION:

(a)  THE IDENTITY OF ANY JUVENILE WHO IS PROTECTED PURSUANT TO SECTION 19­1­304 AND 19­1­307, C.R.S.;

(b)  THE IDENTITY OF A VICTIM OF SEXUAL ASSAULT AS DEFINED IN SECTION 24­72­304 (4);

(c)  THE IDENTITY OF AN INFORMANT OF THE CRIMINAL JUSTICE AGENCY IF THE RELEASE OF SUCH INFORMATION WOULD THREATEN THE PHYSICAL SAFETY OF THE INFORMANT OR COMPROMISE AN ONGOING INVESTIGATION;

(d)  THE IDENTITY OF A VICTIM OR WITNESS OF A CRIME IF THE RELEASE OF SUCH INFORMATION WOULD THREATEN THE PERSONAL SAFETY OF SUCH PERSON.

SECTION 3.  24­72­304 (1), Colorado Revised Statutes, is amended, and the said 24­72­304 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

24­72­304.  Inspection of criminal justice records. (1)  Except for INCIDENT REPORTS AND records of official actions which must be maintained and released pursuant to this part 3, all criminal justice records, at the discretion of the official custodian, may be open for inspection by any person at reasonable times, except as otherwise provided by law, and the official custodian of any such records may make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his OR HER office.

(6)  IF A PORTION OF A CRIMINAL JUSTICE RECORD IS NOT OPEN FOR INSPECTION PURSUANT TO THIS PART 3, THE OFFICIAL CUSTODIAN OR HIS OR HER DEPUTY SHALL REMOVE THAT PORTION THAT IS NOT OPEN FOR INSPECTION AND MAKE AVAILABLE FOR INSPECTION AND COPYING THAT PORTION OF THE RECORD THAT IS OPEN TO INSPECTION WITHOUT CHARGE FOR EDITING SUCH INFORMATION. THE OFFICIAL CUSTODIAN MAY SET AND CHARGE FEES PURSUANT TO SECTION 24­72­306 FOR COPIES, PRINTOUTS, AND PHOTOGRAPHS OF THAT PORTION OF SUCH RECORD THAT IS OPEN TO PUBLIC INSPECTION.

SECTION 4.  24­72­306 (1), Colorado Revised Statutes, is amended to read:

24­72­306.  Copies, printouts, or photographs of criminal justice records ­ fees authorized. (1)  Criminal justice agencies may assess reasonable fees, not to exceed actual costs, including but not limited to personnel and equipment, for the search, retrieval, and copying of criminal justice records and may waive fees at their discretion. IF A PERSON HAS THE RIGHT TO INSPECT A CRIMINAL JUSTICE RECORD, THE CRIMINAL JUSTICE AGENCY SHALL, UPON THE PERSON'S REQUEST, FURNISH COPIES, PRINTOUTS, OR PHOTOGRAPHS OF SUCH RECORD. THE OFFICIAL CUSTODIAN MAY SET A REASONABLE FEE FOR COPIES, PRINTOUTS, AND PHOTOGRAPHS, NOT TO EXCEED ONE DOLLAR AND TWENTY­FIVE CENTS PER PAGE; EXCEPT THAT THE CUSTODIAN MAY SET A HIGHER FEE IF THE CRIMINAL JUSTICE AGENCY, IN PROVIDING SUCH COPIES, PRINTOUTS, OR PHOTOGRAPHS, ACTUALLY INCURS COSTS EXCEEDING SAID AMOUNT. Where fees for certified copies or other copies, printouts, or photographs of such records are specifically prescribed by law, such specific fees shall apply. Where the criminal justice agency is an agency or department of any county or municipality, the amount of such fees shall be established by the governing body of the county or municipality. CRIMINAL JUSTICE AGENCIES MAY SET REASONABLE FEES, NOT TO EXCEED ACTUAL COSTS, INCLUDING BUT NOT LIMITED TO PERSONNEL COSTS, FOR THE SEARCH, RETRIEVAL, AND EDITING OF CRIMINAL JUSTICE RECORDS THAT HAVE BEEN IN EXISTENCE FOR FIVE YEARS OR MORE. CRIMINAL JUSTICE AGENCIES MAY WAIVE FEES AT THEIR DISCRETION.

SECTION 5.  The introductory portion to 19­1­304 (1) (a), Colorado Revised Statutes, is amended to read:

19­1­304.  Juvenile delinquency records. (1) (a)  Court records ­ open.  Except as provided in paragraph (b.5) of this subsection (1) AND SECTION 24­72­303, C.R.S., court records in juvenile delinquency proceedings or proceedings concerning a juvenile charged with the violation of any municipal ordinance except a traffic ordinance shall be open to inspection to the following persons without court order:

SECTION 6.  24­72­203 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

24­72­203.  Public records open to inspection. (1) (c)  IF A PORTION OF A PUBLIC RECORD IS NOT OPEN FOR INSPECTION PURSUANT TO THIS PART 2, THE CUSTODIAN SHALL REMOVE THAT PORTION THAT IS NOT OPEN FOR INSPECTION AND MAKE AVAILABLE FOR INSPECTION AND COPYING THAT PORTION OF THE RECORD THAT IS OPEN TO INSPECTION WITHOUT CHARGE FOR EDITING SUCH INFORMATION. THE CUSTODIAN MAY SET AND CHARGE FEES PURSUANT TO SECTION 24­72­205 FOR COPIES, PRINTOUTS, AND PHOTOGRAPHS OF THAT PORTION OF SUCH RECORDS THAT IS OPEN TO PUBLIC INSPECTION.

SECTION 7.  24­72­204 (5), Colorado Revised Statutes, is amended, and the said 24­72­204 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

24­72­204.  Allowance or denial of inspection ­ grounds ­ procedure ­ appeal. (5)  Any person denied the right to inspect any record covered by this part 2 may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why he should not permit the inspection of such record. Hearing on such application shall be held at the earliest practical time. Unless the court finds that the denial of the right of inspection was proper, it shall order the custodian to permit such inspection. and, upon a finding that the denial was arbitrary or capricious, it may order the custodian personally to pay the applicant's court costs and attorney fees in an amount to be determined by the court.

(6.5)  IF, IN ANY PROCEEDING BROUGHT PURSUANT TO SUBSECTION (5) OR (6) OF THIS SECTION, THE COURT DETERMINES THAT A PERSON WHO HAS REQUESTED AND BEEN DENIED ACCESS TO A PUBLIC RECORD IS ENTITLED TO INSPECT ANY PORTION OF THE RECORD REQUESTED, THE COURT SHALL AWARD REASONABLE COURT COSTS AND ATTORNEY FEES IN FAVOR OF THE PERSON REQUESTING THE RECORD AND AGAINST THE CUSTODIAN. IF THE COURT FINDS THAT THE DENIAL OF THE RIGHT OF INSPECTION WAS PROPER AND THAT A PROCEEDING BROUGHT PURSUANT TO SUBSECTION (5) OR (6) OF THIS SECTION WAS FRIVOLOUS, THE COURT SHALL AWARD REASONABLE COURT COSTS AND ATTORNEY FEES IN FAVOR OF THE CUSTODIAN AND AGAINST THE PERSON REQUESTING THE RECORD.

SECTION 8.  Safety clause.  The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.