The memorandum by the Defendant appears to seek to impair the discovery of facts in the course of the litigation. The Defendant is arguing that the Plaintiff is attempting to contest the election outside of legal time constraints and making suggestions about that motive. Defendant is also appears to be making the argument that benefit to the public interest is not among the possible reasons to inspect ballot images, and that testimony by TrueBallot may show "errors and irregularities" which may be of interest, but not relevant to the case at bar. On the other hand, the possibility of learning about "errors and irregularities" does seem to me to be a reason to inspect the ballot images.
Above is opinion by Harvie Branscomb. Below the break is the memorandum. Here is the link to the earlier coverage of the case: http://aspenelectionreview.blogspot.com/2010/02/marks-v-koch-plaintiff-response-to-city.html
In Denver Post Corp. v University of Colorado, 739 P,2d 874 (Colo. App. 1987), the third case cited by Plaintiff, the court was asked to review the denial of certain documents relating to the payment to university personnel from foreign governments. The custodian of the records denied public access, in part, on the grounds that to do so would cause substantial injury to the public interest. In finding against the custodian, the court ruled that “against the privacy interests at stake must be weighed the general presumption in favor of public access.” Id, at 879. In other words, the balancing test used by the court was simply the weight of the statutory right of newspapers to access public records versus the privacy interest of the university employees. The privacy interests advanced by the custodian can certainly be examined, but other alleged benefits unrelated to the release of the records are not part of the analysis.