Migoya v. Wheeler.
2024 COA 124. No. 23CA0995. Colorado Open Records Act—Personnel File Exception—Licensed Personnel Performance Evaluation Act—Disclosure of School District Personnel Records.
November 27, 2024
The Denver Gazette and one of its reporters, Migoya (jointly, the Gazette) submitted a Colorado Open Records Act (CORA) request to the Denver Public Schools (DPS) records custodian requesting the disciplinary records of all DPS administrators created during the 2021 calendar year (the subject records). Citing the CORA “personnel file exemption,” DPS denied the request, and the Gazette filed a complaint for an order to show cause. The Denver School Leaders Association (DSLA) filed a motion to intervene, which the district court granted over the Gazette’s objection. The district court determined that the subject records are not exempt from disclosure under CORA’s personnel files exception. But the court allowed DPS to file an application to restrict access to the subject records based on the CRS § 24-72-204(6)(a) “substantial injury to the public interest” exception. DPS filed the application jointly with DSLA, which also filed with the court a letter it had sent to the Gazette’s counsel in which it argued for the first time that the subject records were protected from disclosure under § 22-9-109(1) of the Colorado Licensed Personnel Performance Evaluation Act (CLPPEA), as well as under CORA, and stated its intent to have DPS principal Dr. Coogan testify at the hearing on the joint motion. The Gazette filed a motion in limine arguing that the court should preclude Coogan from testifying at the hearing because her testimony would be irrelevant. The Gazette also moved to strike the DSLA letter as constituting an unauthorized surreply or supplemental brief. The district court denied the Gazette’s motions but stated it would allow the Gazette to respond to DSLA’s legal arguments during closing arguments and through the submission of post-hearing proposed findings of fact and conclusions of law. Following an evidentiary hearing, the court upheld the denial of the subject records’ release based on CORA’s personnel file exception.
On appeal, the Gazette argued that the court erred by allowing DSLA to assert, three days before the hearing, the legal arguments it presented for the first time in the DSLA letter. The Gazette maintained that the DSLA letter was a surreply or supplemental brief that DSLA could not file without prior leave of court. However, the Gazette produced no binding authority holding that a Colorado state court abuses its discretion by accepting a “surreply” or a “supplemental brief” not previously authorized, particularly where, as here, the document raises relevant legal issues and the court takes affirmative steps to minimize any resulting prejudice to the opposing party. Accordingly, the court did not abuse its discretion by considering the arguments and authorities in the DSLA letter or by allowing its submission without prior leave of court.
The Gazette further contended that the court erred by allowing Coogan to provide “improper opinion testimony” interpreting CLPPEA. Here, Coogan’s testimony was relevant and complied with CRE 701, so the court did not abuse its discretion by allowing it.
The Gazette also argued that the district court erred by concluding that DPS and DSLA met their burden of proving that disclosing the subject records would cause substantial injury to the public interest. The Gazette additionally asserted that CLPPEA should not be considered as an independent basis to deny inspection because DSLA did not preserve its CLPPEA argument. However, DSLA presented the substance of its CLPPEA argument to the court, so it is properly preserved for appellate review. On the merits, the court of appeals decided to resolve this appeal by applying CLPPEA rather than CORA, because CLPPEA § 22-9-109(1)—which prohibits disclosing evaluation reports of school districts’ licensed personnel and the public records used in preparing those reports, regardless of whether such documents are subject to disclosure under CORA—independently bars disclosing the subject records to the Gazette.
Lastly, the Gazette requested an award of attorney fees and court costs under CORA § 24-72-204(5)(b). However, the Gazette is not entitled to an award of attorney fees and costs because it was unsuccessful in obtaining a court order requiring DPS to allow it to inspect the subject records.
The order was affirmed.