Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
On Jan. 6, 2022, David Migoya, a reporter for the Denver Gazette, submitted a Colorado Open Records Act request to Stacy Wheeler, in her capacity as Denver Public Schools’ custodian of records, for “any final summary memos (FRISK) of disciplinary action—including but not limited to letters of wrongdoing, memos to file, letters of placement on leave, suspension, and/or termination—against any [DPS] administrator, to include assistant principals, principals, and any director/administrator above those positions, for the 2021 Calendar Year.”
On Jan. 15, 2022, Wheeler informed the Gazette that DPS would grant its request. Fifteen days later, she said that DPS had reversed its position and would not grant the Gazette access to the subject records because they fall within the “personnel file exemption” of CORA and in light of the “public policy favoring privacy [and] efficient operation of schools.”
Migoya sent an email Jan. 26, 2022, to Wheeler, asserting that CORA’s personnel files exception was inapplicable to the subject records and that public policy wasn’t grounds to refuse disclosure under CORA. In a response days later, Wheeler again asserted the position that DPS could withhold the files.
The Gazette subsequently filed a complaint and an application for an order to show cause. The Denver School Leaders Association filed a motion to intervene, which the court granted over the Gazette’s objection.
The court determined that the subject records were not exempt from disclosure under CORA’s personnel files exception but found that DPS had reserved its right to argue that public disclosure of the subject records “would do substantial injury to the public interest.”
DPS and DSLA filed a joint motion to bar the Gazette from accessing the subject records, and the Gazette filed an objection to the joint motion.
At the hearing, the court concluded that DPS and DSLA “carried their burden of proof … and established that disclosure of the [subject] records as requested by [the Gazette] would substantially injure the public,” and that the Gazette wasn’t entitled to inspect the subject records because of CORA’s substantial injury exception.
The Gazette appealed.
The Colorado Court of Appeals held that the Colorado Licensed Professional Performance Evaluation Act protected the subject records from disclosure, but it didn’t reach the separate issue of whether disclosing the records would cause substantial injury to the public interest under CORA.
The appeals court affirmed, albeit on different grounds from those underlying the court’s decision.