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Todd v. Hause

Court of Appeals of Colorado, First Division

July 30, 2015

Vincent C. Todd, Plaintiff-Appellant,
Ann Hause, as director of Legal and Regulatory Compliance for the Colorado Department of Public Health and Environment; Jeffery A. Groff, as program manager for the Evidential Breath Alcohol Testing Program of the Colorado Department of Public Health and Environment; and Colorado Department of Public Health and Environment, Defendant-Appellee.

City and County of Denver District Court No. 13CV34027 Honorable Kenneth M. Laff, Judge

Gary Pirosko PC, Gary F. Pirosko, Denver, Colorado, for Plaintiff-Appellant

Cynthia H. Coffman, Attorney General, Alisa A. Campbell, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee



¶ 1 Plaintiff, Vincent C. Todd, appeals the district court's grant of summary judgment in favor of defendant, the Colorado Department of Public Health and Environment (Department), and denial of Todd's Colorado Open Records Act (CORA) request for access to certain information in records maintained by the Department regarding breath alcohol level testing by Colorado law enforcement agencies.[1]

¶ 2 We affirm the judgment in all respects except as to the portion of the court's order denying Todd access to information about persons who took the breath tests. As to that portion of the court's order, we reverse and remand for further proceedings.

I. Relevant Facts and Procedural Background

¶ 3 According to his complaint, Todd is a "consulting paralegal to Colorado attorneys" who "devotes a significant amount of his professional time to assisting criminal defense attorneys in DUI and DUID defense . . . ." Todd made several written CORA requests to the Department for all data gathered from the Intoxilyzer 9000, the device Colorado law enforcement agencies use to test the breath alcohol level of suspected intoxicated drivers.

¶ 4 The Department maintains the centralized database server for in-field Intoxilyzer 9000 instruments. The database links with Intoxilyzer 9000s to retrieve and transfer instrument data, to perform instrument updates, and for remote control of the instruments. The database links with the in-field Intoxilyzer 9000s through software developed by CMI, Inc., called Computerized Online Breath Archive (COBRA) software. In response to Todd's request, the Department asserted that the COBRA software is proprietary and that, under its license agreement with CMI, it was prohibited from copying or transferring the COBRA software.

¶ 5 While the Department acknowledged that the information contained in the database is not protected under the licensing agreement, it claimed that the COBRA database file contains proprietary programming belonging to CMI that cannot be separated from the Intoxilyzer 9000 data while in the native Structured Query Language (SQL) file format. Thus, according to the Department, providing the data to Todd in SQL format would necessarily disclose CMI's proprietary software, which in turn would violate the licensing agreement entered into by the Department with CMI.

¶ 6 The Department offered to convert the data to Comma-Separated Values (.csv) file format, a different file format than SQL and, after redacting all confidential or personally identifying data fields, to provide the data to Todd.

¶ 7 Todd refused this offer and filed a complaint in district court alleging that, under CORA, the Department was required to disclose the data in SQL format and that certain redactions claimed by the Department were not authorized by the statute. Todd has never explained why the data in .csv file format is materially different than the data in SQL file format.

¶ 8 Both parties filed motions for summary judgment. In its summary judgment motion, the Department asserted that, under CORA's trade secret exception, section 24-72-204(3)(a)(IV), C.R.S. 2014, the data in SQL format was not subject to disclosure. The Department further asserted that it had the right to redact any personally identifying information of both the persons who performed the tests and the persons who took them. As to the former, the Department contended that disclosure of such identifying information could compromise the security of the state DUI enforcement system. As to the latter, the Department asserted that persons who were required to take the breath tests had privacy rights in the information.

¶ 9 In support of these assertions, the Department submitted the affidavits of CMI's corporate counsel and two Department employees who provided computer-related support for the Department's breath alcohol testing program.

¶ 10 Todd submitted only his own affidavit in opposition to the Department's motion for summary judgment and in support of his own motion.

¶ 11 The district court granted the Department's motion and denied Todd's.

II. The Court Correctly Denied Todd's Request for the ...

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