Case No. 03 SC 783, Colorado Supreme Court
ACLU Case No. 2005-01
This case involves a clash of competing civil liberties interests: broad construction of the Colorado Open Records Act (CORA) ensuring public access to government communications on the one hand, and the privacy interests of public workers in personal communications on the other. In this case, the Rocky Mountain News has asked the Colorado Supreme Court to hold that employees have no privacy interests in electronic mail created on their workplace computer. It seeks the release of over 500 emails exchanged between former Arapahoe County Clerk and Recorder Tracy Baker and a subordinate employee with whom he was romantically involved.
At the invitation of the Colorado Supreme Court, the ACLU filed an amicus brief. The ACLU does not take a position regarding the application of the open records laws to the specific emails at issue. Rather, the ACLU urges the court to retain the 25-year-old “balancing test” applied to requests for personal communications first announced in Martinelli v. District Court,199 Colo. 163, 612 P.2d 1083 (1980). The ACLU has asked the court to balance the worker’s expectations of privacy (including evaluating the contents of the documents at issue) against the public’s interests under CORA and to reject the newspaper’s request that an employer’s email policy, standing alone, can entirely trump workplace privacy.
Mark Silverstein , ACLU of Colorado Legal Director
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