24-72-301. Legislative declaration.

Statute text

(1) The general assembly hereby finds and declares that the maintenance, access and dissemination, completeness, accuracy, and sealing of criminal justice records are matters of statewide concern and that, in defining and regulating those areas, only statewide standards in a state statute are workable.

(2) It is further declared to be the public policy of this state that criminal justice agencies shall maintain records of official actions, as defined in this part 3, and that such records shall be open to inspection by any person and to challenge by any person in interest, as provided in this part 3, and that all other records of criminal justice agencies in this state may be open for inspection as provided in this part 3 or as otherwise specifically provided by law.

History

Source: L. 77: Entire part added, p. 1244, § 1, effective December 31

24-72-306. Copies, printouts, or photographs of criminal justice records - fees authorized.

Statute text

(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. 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.

(2) If the custodian does not have facilities for making copies, printouts, or photographs of records which the applicant has the right to inspect, the applicant shall be granted access to the records for the purpose of making copies, printouts, or photographs. The copies, printouts, or photographs shall be made while the records are in the possession, custody, and control of the custodian thereof and shall be subject to the supervision of such custodian. When practical, they shall be made in the place where the records are kept, but, if it is impractical to do so, the custodian may allow other arrangements to be made for this purpose. If other facilities are necessary, the cost of providing them shall be paid by the person desiring a copy, printout, or photograph of the records. The official custodian may establish a reasonable schedule of times for making copies, printouts, or photographs and may charge the same fee for the services rendered by him or his deputy in supervising the copying, printing out, or photographing as he may charge for furnishing copies under subsection (1) of this section.

History

Source: L. 77: Entire part added, p. 1248, § 1, effective December 31.

Annotations

ANNOTATION

Annotations

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Subsection (1) can be read in harmony with the requirement of Crim. P. 16 part V(c) so that any costs for search or retrieval are limited to materials discoverable. Thus, an agency is limited to reasonable fees for discoverable materials. People v. Trujillo, __ P.3d __ (Colo. App. 2004).

24-72-307. Challenge to accuracy and completeness - appeals.

Statute text

(1) Any person in interest who is provided access to any criminal justice records pursuant to this part 3 shall have the right to challenge the accuracy and completeness of records to which he has been given access, insofar as they pertain to him, and to request that said records be corrected.

(2) If the custodian refuses to make the requested correction, the person in interest may request a written statement of the grounds for the refusal, which statement shall be furnished forthwith.

(3) In the event that the custodian requires additional time to evaluate the merit of the request for correction, he shall so notify the applicant in writing forthwith. The custodian shall then have thirty days from the date of his receipt of the request for correction to evaluate the request and to make a determination of whether to grant or refuse the request, in whole or in part, which determination shall be forthwith communicated to the applicant in writing.

(4) Any person in interest whose request for correction of records is refused 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 correction of such record. A hearing on such application shall be held at the earliest practical time. Unless the court finds that the refusal of correction was proper, it shall order the custodian to make such correction, and, upon a finding that the refusal was arbitrary or capricious, it may order the criminal justice agency for which the custodian was acting to pay the applicant's court costs and attorney fees in an amount to be determined by the court.

History

Source: L. 77: Entire part added, p. 1248, § 1, effective December 31.

24-72-308. Sealing of records.

Statute text

(1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), any person in interest may petition the district court of the district in which any arrest and criminal records information pertaining to said person in interest is located for the sealing of all of said records, except basic identification information, if the records are a record of official actions involving a criminal offense for which said person in interest was not charged, in any case which was completely dismissed, or in any case in which said person in interest was acquitted.

(II) Except as provided in subparagraph (III) of this paragraph (a), arrest or criminal records information may not be sealed if:

(A) An offense is not charged due to a plea agreement in a separate case; or

(B) A dismissal occurs as part of a plea agreement in a separate case.

(III) A person in interest may petition the district court of the district in which any arrest and criminal records information pertaining to said person in interest is located for the sealing of all of said records, except basic identification information, if the records are a record of official actions involving a criminal offense that was not charged or a case that was dismissed due to a plea agreement in a separate case, and if:

(A) The petition is filed fifteen years or more after the date of the final disposition of all criminal proceedings against the person in interest; and

(B) The person in interest has not been charged for any criminal offense in the fifteen years since the date of the final disposition of all criminal proceedings against the person in interest.

(b) (I) Any petition to seal criminal records shall include a listing of each custodian of the records to whom the sealing order is directed and any information which accurately and completely identifies the records to be sealed.

(II) (A) Upon the filing of a petition, the court shall review the petition and determine whether there are grounds under this section to proceed to a hearing on the petition. If the court determines that the petition on its face is insufficient or if the court determines that, after taking judicial notice of matters outside the petition, the petitioner is not entitled to relief under this section, the court shall enter an order denying the petition and mail a copy of the order to the petitioner. The court's order shall specify the reasons for the denial of the petition.

(B) If the court determines that the petition is sufficient on its face and that no other grounds exist at that time for the court to deny the petition under this section, the court shall set a date for a hearing and the petitioner shall notify the prosecuting attorney by certified mail, the arresting agency, and any other person or agency identified by the petitioner.

(c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (1) is conducted and if the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records, except basic identification information, to be sealed. Any order entered pursuant to this paragraph (c) shall be directed to every custodian who may have custody of any part of the arrest and criminal records information which is the subject of the order. Whenever a court enters an order sealing criminal records pursuant to this paragraph (c), the petitioner shall provide the Colorado bureau of investigation and every custodian of such records with a copy of such order. Thereafter, the petitioner may request and the court may grant an order sealing the civil case in which the records were sealed.

(d) Upon the entry of an order to seal the records, the petitioner and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such records exist with respect to such person.

(e) Inspection of the records included in an order sealing criminal records may thereafter be permitted by the court only upon petition by the person who is the subject of such records or by the prosecuting attorney and only for those purposes named in such petition.

(f) (I) Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records information that has been sealed, include a reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant's refusal to disclose arrest and criminal records information that has been sealed.

(II) Subparagraph (I) of this paragraph (f) shall not preclude the bar committee of the Colorado state board of law examiners from making further inquiries into the fact of a conviction which comes to the attention of the bar committee through other means. The bar committee of the Colorado state board of law examiners shall have a right to inquire into the moral and ethical qualifications of an applicant, and the applicant shall have no right to privacy or privilege which justifies his refusal to answer to any question concerning arrest and criminal records information that has come to the attention of the bar committee through other means.

(g) Nothing in this section shall be construed to authorize the physical destruction of any criminal justice records.

(1.5) For the purpose of protecting the author of any correspondence which becomes a part of criminal justice records, the court having jurisdiction in the judicial district in which the criminal justice records are located may, in its discretion, with or without a hearing thereon, enter an order to seal any information, including, but not limited to, basic identification information contained in said correspondence. However, the court may, in its discretion, enter an order which allows the disclosure of sealed information to defense counsel or, if the defendant is not represented by counsel, to the defendant.

(2) Advisements. Whenever a defendant has charges against him dismissed, is acquitted, or is sentenced following a conviction, the court shall provide him with a written advisement of his rights concerning the sealing of his criminal justice records if he complies with the applicable provisions of this section.

(3) Exceptions. (a) This section shall not apply to records pertaining to:

(I) Any class 1 or class 2 misdemeanor traffic offense;

(II) Any class A or class B traffic infraction; or

(III) Any conviction for a violation of section 42-4-1301 (1) or (2), C.R.S.

(b) Court orders sealing records of official actions entered pursuant to this section shall not limit the operation of rules of discovery promulgated by the supreme court of Colorado.

(c) This section shall not apply to records pertaining to a conviction of an offense for which the factual basis involved unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S.

(d) This section shall not apply to arrest and criminal justice information or criminal justice records in the possession and custody of a criminal justice agency when inquiry concerning the arrest and criminal justice information or criminal justice records is made by another criminal justice agency.

History

Source: L. 77: Entire part added, p. 1249, § 1, effective December 31. L. 78: (1) and (2) amended, (1.1) to (1.3) and (9) added, and (3)(b) repealed, pp. 403, 406, §§ 2, 3, effective May 5. L. 79: (1)(a), (1.1)(c) to (1.1)(f), and (9) amended and (10) added, p. 975, § 1, effective March 13. L. 81: Entire section R&RE, p. 1238, § 2, effective June 4. L. 82: (2)(b)(I), (2)(b)(II), and (5)(a) amended, p. 655, § 8, effective January 1, 1983. L. 83: (1)(a) amended, p. 680, § 4, effective July 1; (2)(i) and (3)(c)(II) amended, p. 963, § 11, effective July 1, 1984. L. 87: (5)(a) amended, p. 1498, § 8, effective July 1. L. 88: Entire section R&RE, p. 979, § 3, effective April 20. L. 92: (1.5) added, p. 281, § 1, effective July 1; (3) amended, p. 1106, § 7, effective July 1. L. 95: (3)(a) amended, p. 314, § 1, effective July 1. L. 96: (1)(a) amended, p. 736, § 5, effective July 1; (3)(c) amended and (3)(d) added, p. 1587, § 13, effective July 1. L. 2002: (3)(c) amended, p. 1190, § 33, effective July 1. L. 2003: (1)(b)(II) amended, p. 634, § 1, effective March 18. L. 2004: (1)(a) amended, p. 1375, § 1, effective August 4.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Punitive Damages in Wrongful Discharge Cases", see 15 Colo. Law. 658 (1986). For article, "Sealing Criminal Records in Colorado", see 21 Colo. Law. 247 (1992).

Section indicates the general assembly's intent to preserve the complete criminal justice record, but in a form that protects the individual named from any harmful effects. People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Physical destruction of records not generally allowed. By fashioning the remedy of sealing records, the general assembly did not intend that the physical destruction of the records also be allowed in most situations. People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

The court must balance the competing interests in determining whether criminal records should be sealed, and its decision in this regard may not be overturned on appeal absent an abuse of that discretion. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001).

Once the court determines that arrest records and criminal justice information should be sealed, subsection (1)(c) requires the order to be directed to every custodian having custody of any of the records to be sealed. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001).

No irreconcilable conflict or inconsistency between the sealing provisions of this section and § 19-3-313 (7)(a) and (9). Because they deal with the same subject, all of these provisions should be given effect. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001) (decided before the 2004 repeal of § 19-3-313).

There is no basis under either statutory scheme for exempting criminal records held by the Boulder county department of social services from the application of the sealing provisions of this section. Rather, the provisions apply to the police reports in the possession of the Boulder county department of social services, but do not apply to its own investigative records or to the remainder of its files. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001) (decided before the 2004 repeal of § 19-3-313).

An individual may deny his past criminal record. Subsection (3)(f)(I) (now subsection (1)(f)(I)) clearly allows an individual to deny past criminal involvement if the criminal record has been sealed pursuant to the provisions of subsection (3)(c)(I) (now subsection (1)(c)(I)). In making a determination, the trial court should consider the severity of the offense sought to be sealed, the time which has elapsed since the conviction, the subsequent criminal history of the petitioner, and the need for the government agency to retain the records. D.W.M. v. District Court, 751 P.2d 74 (Colo. 1988); People v. Bushu, 876 P.2d 106 (Colo. App. 1994).

Where a petitioner requests to seal criminal records of an acquittal, the court may also consider factors relating to the strength of the case, petitioner's age and employment history, and various consequences if the records are not sealed. The balance test allows for consideration of other factors on a case-by-case basis. People v. Bushu, 876 P.2d 106 (Colo. App. 1994).

Where all charges against the petitioner were dismissed or resulted in acquittal, the severity of the charges is not a factor supporting denial of a petition to seal the records. If anything, in an acquittal context, the fact that the charges of which the petitioner was acquitted were serious increases the potential harm to the petitioner if the records are not sealed. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

There is no reason to attach any significance to a brief lapse of time since the trial when the sealing of records is sought after an acquittal. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Assessing the strength of the case against a defendant based on the length of jury deliberations is necessarily speculative and does not, without more, establish that the prosecution's case was strong. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Where all charges of sexual misconduct were dismissed or resulted in acquittal, the petitioner's desire to pursue employment that will permit the petitioner to supervise and be alone with children could not warrant keeping the records unsealed, given the absence of other factors supporting denial of the petition to seal the records. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Petitioner's punishment was increased retroactively in violation of the ex post facto clause of the Colorado Constitution when petitioner was denied the automatic entry of an order limiting access to records relating to the charge against her because the trial court applied an amendment of the statute enacted after petitioner committed her crime. In re R.B., 815 P.2d 999 (Colo. App. 1991).

The opportunity to petition and to have the balancing test applied in a hearing under this section is not a vested or a substantive right. People v. D.K.B., 843 P.2d 1326 (Colo. 1993); E.J.R. v. District Court, County of Boulder, 892 P.2d 222 (Colo. 1995).

Therefore, where petitioner was convicted prior to the 1988 amendment to subsection (1)(a) but did not petition for sealing prior to the amendment, applying the provisions of the amendment to the petitioner did not violate the constitutional prohibition against retrospective legislation. People v. D.K.B., 843 P.2d 1326 (Colo. 1993).

Convicted felon, however, has vested privacy interest in sealed criminal records as of the date of the court's final order to seal the records and expiration of the appeal period, regardless of whether the court, having proper subject matter jurisdiction to seal criminal records, inappropriately authorized the sealing of felony records. The judgment may have been erroneous, but is not void. E.J.R. v. District Court, County of Boulder, 892 P.2d 222 (Colo. 1995).

An order entered under subsection (1)(c) to seal records must be directed to every custodian having custody of any of the records to be sealed. In re Petition of T.L.M., 39 P.3d 1239 (Colo. App. 2001).

A waiver of the right to request sealing of records is not contrary to public policy. Rather, public policy favors the enforcement of a defendant's express waiver of the statutory right to request sealing of criminal records. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).

Applied in Tipton v. City of Lakewood ex rel. People, 198 Colo. 18, 595 P.2d 689 (1979); People v. Whittle, 628 P.2d 169 (Colo. App. 1981); People v. Chamberlin, 74 P.3d 489 (Colo. App. 2003).

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