What is the law?
Binding, on-point law (about)
The Colorado Public Records Act specifically states that "[n]othing in this article shall preclude the state or any of its agencies, institutions, or political subdivisions from obtaining and enforcing trademark or copyright protection for any public record, and the state and its agencies, institutions, and political subdivisions are hereby specifically authorized to obtain and enforce such protection in accordance with the applicable federal law; except that this authorization shall not restrict public access to or fair use of copyrighted materials and shall not apply to writings which are merely lists or other compilations." Colo. Rev. Stat. Ann. § 24-72-203.
Advisory sources (about)
The Colorado Attorney General has construed § 24-72-204(1)(b) (allowing records requests to be denied if contrary to a federal law) and § 24-72-205 (stating that a records custodian "may" furnish copies of records) to interact with federal copyright law as follows: "[r]equests to copy government documents can raise copyright questions. For example, some as-built drawings or other architectural drawings in government files might be protected by a copyright. While the custodian may allow inspection of such copyrighted materials, the custodian ordinarily will not copy such materials or allow others to copy them." Ken Salazar, "Colorado Open Records Act, Nineteen Frequently Asked Questions," No. 01-1 Alpha No. LW AG AGBAM, fn9.
Public records law (about)
Colorado has had a statutory right of access to public records going back at least to 1884. See Bean v. People, 7 Colo. 200, 2 P. 909, 910 (1884) (interpreting Section 667 of the General Statutes to require the public record office to make county records available for examination by anyone). Access was often, however, subject to the discretion of the record custodian. See Times-Call Publishing Co. Inc. v. Wingfield, 159 Colo. 172, 410 P.2d 511 (1966) (holding that people who are not parties or counsel in a case only have the right to view pleadings and papers in a pending case at the discretion of the court). The current Colorado Public Records Act dates from 1967 and is located at Colo. Rev. Stat. Ann. § 24-72-201. The Colorado constitution, while not including a right of access to public records generally, acknowledges the statutory right to access in an article added in 1992 creating a new government board. That amendment requires that "[t]he Board shall adopt rules permitting public access to its meetings and records which are no less restrictive than state laws applicable to state agencies." Colo. Const. art. XXVII, § 6(3). By requiring rules "no less restrictive" than existing law, the article expresses a greater concern for records' confidentiality than public access.
Does the public records law restrict the use of disclosed records?
Access to certain vital records is limited to requestors with a "direct and tangible interest" in the records. Commercial use does not satisfy this criterion. Eugene Cervi & Co. v. Russell, 184 Colo. 282, 285, 519 P.2d 1189, 1190 (1974); see also, Colorado Open Records Act (Secretary of State guidance document).
Specifics and examples (about)
|Status||Applies to...||Based on?|
|Copyright asserted by county, licensing available||Summit County Government's Geographic Information System (GIS) data ||Summit County, Colorado, GIS Data Licensing Information|
|Copyrightable by statute||"any and all original publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by the general assembly or its staff" ||Colo. Rev. Stat. Ann. § 2-5-115|
Additional things to consider (about)
In four instances in the Colorado statutes and court rules, records are referred to as "property of the state": Colo. Rev. Stat. Ann. § 12-2-130.5 ("all statements, records, schedules, working papers, and memoranda prepared by a certified public accountant in the employ of the state auditor's office, in the course of professional service to the legislative audit committee, shall be and remain the property of the state auditor's office"); CO ST MAG Rule 10 ("the notes and recordings shall be considered the property of the state"); CO ST CTY CT RCP Rule 380 ("All reporter's notes and electronic or mechanical recordings shall be the property of the state"); Colo. Rev. Stat. Ann. § 24-49.9-102 ("All electronically recorded proceedings of any public body of the state, as defined in section 24-6-402, and of all other types of meetings, sessions, conferences, or public events televised by the Colorado channel authority shall be the property of the state of Colorado and shall be public records under article 72 of this title"). Colorado law also allows the state attorney general to replevin records which should be in the custody of the state. Colo. Rev. Stat. Ann. § 24-80-109 ("On behalf of the state and the department of personnel, the attorney general may replevin any public records which were formerly part of the records or files of any public office of the territory or state of Colorado.").
Where else to go
- Colorado Secretary of State, CORA information, available at http://www.sos.state.co.us/pubs/info_center/cora.html.
- Colorado State Archives, available at https://www.colorado.gov/archives.
- Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in Colorado, available at http://www.rcfp.org/rcfp/orders/docs/ogg/CO.pdf.
- Ashley Messenger, Dennis Pitman, Can States Use Copyright to Restrict the Use of Public Records?, Comm. Law., February 2013, at 4, 5.
Eugene Cervi & Co. v. Russell, 184 Colo. 282, 285, 519 P.2d 1189, 1190 (1974), available at http://scholar.google.com/scholar_case?case=12367317290679792026.
Bean v. People, 7 Colo. 200, 2 P. 909, 910 (1884).
Times-Call Publishing Co. Inc. v. Wingfield, 159 Colo. 172, 410 P.2d 511 (1966), available at http://scholar.google.com/scholar_case?case=17966659912828155843.
Colo. Rev. Stat. Ann. § 24-72-203.
Colo. Rev. Stat. Ann. § 24-72-204.
Colo. Rev. Stat. Ann. § 24-72-205.
Colo. Rev. Stat. Ann. § 24-72-101.
Colo. Const. art. XXVII, § 6, available at http://www.goco.org/sites/default/files/ARTICLE-XXVII-GOCO-Amendment_0.pdf.
Colo. Rev. Stat. Ann. § 2-5-115.
Colo. Rev. Stat. Ann. § 12-2-130.5.
Colo. Rev. Stat. Ann. § 24-49.9-102.
Colo. Rev. Stat. Ann. § 24-80-109.
CO ST MAG Rule 10.
CO ST CTY CT RCP Rule 380.
Attorney General Opinions
- Ken Salazar, Colorado Open Records Act, Nineteen Frequently Asked Questions, No. 01-1 Alpha No. LW AG AGBAM, fn9, available at http://www.coloradoattorneygeneral.gov/sites/default/files/ag_opinions/2001/.pdf_2.
Colorado Open Records Act (Secretary of State guidance document), available at http://www.sos.state.co.us/pubs/info_center/files/CORA_Act.pdf.
Summit County Colorado, GIS Data Licensing Information, available at http://www.co.summit.co.us/index.aspx?nid=249.
Edward A. Pisacreta & Jonathan P. Mollod, Licensing and Commercialization Issues for Geographic Data, 45 Les Nouvelle 1, 5 (2010).
Letter from Carl Malamud to the President of the Colorado Senate, available at https://law.resource.org/pub/us/code/co/colorado.letter.pdf.
-  Most recent litigation touching on the copyright status of state documents has concerned GIS data (see, e.g., the cases in Florida (Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. Dist. Ct. App. 2004)), California (County of Santa Clara v. Superior Court, 89 Cal. Rptr. 374 (Cal. Ct. App. 2009)), New York (City of New York v. Geodata Plus, LLC, 537 F. Supp. 2d 443 (E.D.N.Y. 2007)), and South Carolina (Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008))). For a general discussion of the copyright status of government GIS data, see Edward A. Pisacreta & Jonathan P. Mollod, Licensing and Commercialization Issues for Geographic Data, 45 Les Nouvelles 1, 5 (2010).
-  Judicial opinions cannot be copyrighted. The Supreme Court in Banks v. Manchester, 128 U.S. 244, 9 S. Ct. 36, 32 L. Ed. 425 (1888) invalidated an asserted copyright by a private publisher, an Ohio citizen, for copyright in the state court reports, holding that any content written by a judge cannot be copyrighted because "[t]he whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or a statute." See also Nash v. Lathrop, 142 Mass. 29, 35, 6 N.E. 559, 560 (1886) and Wheaton v. Peters, 33 U.S. 591, 668, 8 L. Ed. 1055 (1834). Only materials ancillary to the court opinion such as the "title-page, table of cases, head notes, statements of facts, arguments of counsel, and index" may be copyrighted. Callaghan v. Myers, 128 U.S. 617, 649, 9 S. Ct. 177, 185, 32 L. Ed. 547 (1888). Prior to 2011 Colo. Rev. Stat. Ann. § 2-5-115 said that "Colorado Revised Statutes and ancillary publications... shall be copyrighted." In 2011 the Colorado legislature revised this language to language more in line with Supreme Court precedent, and it now reads as quoted above. Changes such as this have been due in large part to open government initiatives such as that of Carl Malamud. See, e.g., Letter from Carl Malamud to the President of the Colorado Senate; see generally Public.Resource.Org.