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privilege.2 <br />4. Lessons from the Tracy Baker case <br />Denver Publishing Co v. BOCC of Arapahoe County, 121 P.3d 190 <br />(Colo. 2005) <br />a) Court balanced the public interest in the disclosure of <br />information relevant to alleged official misconduct and the <br />privacy rights of individuals. <br />b) Two step test for e- mails: <br />Step 1: Look at by whom and where the records are kept and <br />maintained. Do not consider the content in this step. If it is not <br />kept by a public entity it is not a public record. If it is kept or <br />maintained by a public entity, then go to step 2: <br />Step 2: Is it kept by the government for use in exercise of <br />functions required or authorized by law or administrative rule or <br />involve the receipt or expenditure of public funds? This inquiry <br />is content driven. <br />Based on this analysis, place the e -mail in one of three (3) categories <br />and treat as indicated: <br />Category 1. Those dealing with Baker's performance as a public <br />office or expenditure of public funds must be provided. <br />Category 2. Those dealing with private communications need not be <br />provided. <br />Category 3. Those that are mixed, containing both public and private <br />communications, are to be redacted by the D. Ct. And provided. <br />'If any public record is withheld pursuant to this subparagraph (XIII), the custodian shall provide <br />the applicant with a sworn statement specifically describing each document withheld, explaining why <br />each such document is privileged, and why disclosure would cause substantial injury to the public <br />interest. If the applicant so requests, the custodian shall apply to the district court for an order permitting <br />him or her to restrict disclosure. The application shall be subject to the procedures and burden of proof <br />provided for in subsection (6) of this section. All persons entitled to claim the privilege with respect to <br />the records in issue shall be given notice of the proceedings and shall have the right to appear and be <br />heard. In determining whether disclosure of the records would cause substantial injury to the public <br />interest, the court shall weigh, based on the circumstances presented in the particular case, the public <br />interest in honest and frank discussion within government and the beneficial effects of public scrutiny <br />upon the quality of governmental decision - making and public confidence therein. <br />C.R.S. §24- 72- 204(3)(a)(XIII) <br />Page 22 of 26 <br />