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. ' '. ` ILii A YT-~.i4_ ~ - ' ~~..' - `3~=- ~b~~~ _ - ~ - _- __ .- _~ ..y~Yr,iir• .'' 1. Mr. David Shelton, Director February 24, 1981 Page Four the quantity of the coal or to the analysis of the chemical and physical properties of the coal... shall be kept confidential and shall not be made a matter of public record;...." Subsection (2) of this same section provides that "any information required by this section which is not on public file pursuant to state law shall be held in confidence by the board and the division. " (Emphasis added) The Board rules implementing this statutory pro- vision are found in Rule 2.07.5. Subsection (1)(c) of this rule provides that "information in t11e reclamation plan portions of the application, which is required to be filed with the Division under §34-33-111(2), C.R.S. 1973 and which is not on up blic file pursuant to state law, shall be held in confidence by the Board and the Division provided that such information is clearly indentified as being confidential or a specific written request is received from the applicant." (Emphasis added) It is our position that §24-72-104(3)(a)(IV) i.s the appropriate legal authority for confidentiality treat- ment where the 1979 Act and Board rules cited above refer to "and which is not on public file pursuant to state law." It should be noted that it is my impression that Rule 2.07.5(1)(c) should cite §34-33-111(1) rather than §34-33-111(2). This may have been an oversight in the drafting and promulgation of this particular rule. Subsection (2) of §34-33-111 does not specify the legal requirements for a reclamation plan. It should not matter whether a hydrology report is physically located in a baseline information section or a reclamation plan section of the permit application as the mitigation or environmental protection measure described in the reclamation plan for the permit area normally must reference the baseline hydrologic investigation report should it be physically located in a section other than the reclamation plan section. In reviewing applicable case law to this matter, only two Colorado Supreme Court case decisions have interpreted the Colorado Open Records Act. The case Cervi v. Russell, 184 Colo. 282, 519 P.2d 1189 (1974) does not appear relevant to this issue. A companion decision in Denver Publishing Company v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974) does = " establish the basic premise, based on the clear legislative intent manifested in the declaration of policy, that all public records are to be open for inspection except as provided for in the Act itself or otherwise specifically