The American Civil Liberties Union of Colorado (ACLU) originally brought a lawsuit with Terrill Johnson against the City of Denver and a variety of police officers and officials. The ACLU sought disclosure of police investigation records concerning Johnson’s complaint that Denver police officers had engaged in racial profiling, used excessive force, arrested him without justification, and engaged in other improper conduct. The ACLU also sought a broad declaratory judgment that no Denver police officers enjoyed any privacy rights in any internal affairs files.

A trial court granted access to Johnson’s files, but denied the broad request for a ruling on privacy rights. The ACLU challenged the decision in the Colorado Court of Appeals. The Court upheld the dismissal of the ACLU’s request.

The Court held that the Colorado Criminal Justice Records Act, the law under which the ACLU sought the records, required that a court engage in a “tripartite balancing inquiry that determines (1) whether the claimant has a legitimate expectation that the materials or information will not be disclosed; (2) whether disclosure is nonetheless required to serve a compelling state interest; and (3) if so, whether the necessary disclosure will occur in the least intrusive manner.”

Under the Act, a party resisting disclosure must show (1) that he or she has an actual or subjective expectation that the information not be disclosed, and (2) that the material or information sought to be discovered is highly personal and sensitive, and its disclosure would be offensive and objectionable to a reasonable person of ordinary sensibilities. With regard to the second, or “objective,” component of the expectation of nondisclosure, the Court observed that “the information could range from the most sensitive, such as material reflecting the intimate relationships of the claimant with other persons, to the least sensitive, such as name, address, marital status, and present employment. Depending, of course, on the circumstances of the individual case, it is less likely that information or materials in the lower tiers of this ranking will come within the zone of protection of the right to confidentiality.”

In the eyes of the Court, all of these privacy considerations were necessarily fact-intensive, and required a case-by-case analysis of whether particular records were subject to disclosure:

“Here, the ACLU sought to have the trial court make a broad declaration of general applicability – namely, that Denver police officers have no reasonable expectation of privacy or no constitutionally-protected privacy interest in internal police files pertaining to the discharge of their official duties. Such a declaration would obviate the need for any case-specific inquiry regarding the first prong of the balancing inquiry whenever such information is requested. We agree with the trial court that the declaration sought by the ACLU here was unavailable. Rather, the existence of an expectation of privacy turns on the specific facts of each individual case. Thus, the expectation of privacy, or lack thereof, at issue here cannot be the subject of a declaratory judgment purporting to be applicable to all cases.”

American Civil Liberties Union of Colorado v. Whitman, 2006 WL 2828851 (Colo.App. 2006).

This article appears in the January 2007 issue