While reviewing Colorado law, Darren Chaker, editor of http://DarrenChaker.org/ , found that Section 24-72-308(1), C.R.S. (2000) allows any person in interest to petition the district court for the purpose of sealing that person’s criminal records. A petition may be filed to seal records of a criminal offense for which the person was not charged, in any case which was completely dismissed, or in any case in which the person was acquitted. Section 24-72-308(1)(a), C.R.S. (2000).
Section 24–72–308 provides that a person of interest who is eligible under the statute may seek the sealing of any arrest and criminal records information. The information to be sealed must be “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.” Section 24–72–308(1)(a)(I), C.R.S.2004.
Once sealed, a right of privacy attaches. The existence of a right to privacy in Colorado was recognized by the Colorado Supreme Court in Rugg v. McCarty, 173 Colo. 170, 476 P. 2d 753 (1970). In doing so, the court followed in the footsteps of the United States Supreme Court, which found that there is a constitutional and fundamental right to privacy independent of the enumerated protections of the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479 (1965). See also People v. D.K.B, 843 P. 2d 1326, 1329 (Colo. 1993). The right of privacy in Griswold was meant to be interpreted as a broad, fundamental right to be left alone.
Thus, in Davidson v. Dill, 503 P. 2d 157 (Colo. 1972), the Colorado Supreme Court recognized that arrest records fall directly under the protection of a citizen’s right to privacy. The court based its holding on the fact that public disclosure of arrest records can cause great economic and personal harm to an individual. In its decision, the court ruled that justice requires “the existence of a right of privacy in the fingerprints and photographs of an accused who has been acquitted, to be at least placed in the balance, against the claim of the state for a need for their retention.”
Last, in Davidson, the court held that “a court should expunge an arrest record or order its return when the harm to the individual’s right of privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records in police files.” D.K.B., 843 P. 2d at 1330 (quoting Davidson, 180 Colo. at 130, 503 P. 2d at 161. This recognition of an individual’s right to privacy in otherwise public records seeks to protect the individual interest in avoiding disclosure of personal matters. D.K.B., 843 P. 2d at 1330 (citing Martinelli v. District Court, 199 Colo. 163, 612 P. 2d 1083, 1091 (1980). The court identified this aspect of the right to privacy as “the right to confidentiality.” D.K.B., 843 P. 2d at 1330 (citing Martinelli, 612 P. 2d at 1091. Under Davidson, an acquitted criminal defendant’s right of privacy (or the right to confidentiality) in an arrest record “is a fundamental right implicit in the concept of ordered liberty and that is as well within the penumbras of the specific guarantees of the Bill of Rights. D.K.B., 843 P. 2d at 1330 (citing Davidson, 180 Colo. at 131, 503 P. 2d at 161. Thus, “absent a compelling showing of necessity by the government,” the acquitted person should be entitled to the return of [his] fingerprints and photographs. D.K.B., 843 P. 2d at 1330 (citing Davidson, 180 Colo. at 131, 503 P. 2d at 161.