City of Westminster v. Dogan Construction Co.

914 P.2d 455, 19 Brief Times Rptr. 1289, 1995 Colo. App. LEXIS 256, 1995 WL 442226
CourtColorado Court of Appeals
DecidedJuly 27, 1995
DocketNo. 94CA1032
StatusPublished
Cited by2 cases

This text of 914 P.2d 455 (City of Westminster v. Dogan Construction Co.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Westminster v. Dogan Construction Co., 914 P.2d 455, 19 Brief Times Rptr. 1289, 1995 Colo. App. LEXIS 256, 1995 WL 442226 (Colo. Ct. App. 1995).

Opinion

Opinion by

Judge KAPELKE.

Respondent, Dogan Construction Company, Inc. (Dogan), appeals from the order of the trial court granting petitioner, City of Westminster (the City), the right to withhold certain public documents from inspection pursuant to the “letter of reference of employment” exception to the Colorado Open Records Act. We reverse and remand with directions.

In early 1994, the City took construction bids for the upgrading of its Big Dry Creek wastewater treatment plant. Dogan was the low bidder. Another construction firm, Centric-Jones, was the second low bidder.

[457]*457At the direction of the City, its engineering consultant, HDR Engineering, Inc., conducted a telephone survey of the references of Dogan and Centric-Jones and of other individuals who may have had information about the past performance of those two companies. The HDR employees who made the phone calls summarized the responses on survey sheets.

Based upon the information received, HDR recommended that the contract be awarded to Centric-Jones. Claiming inaccuracies in the City’s reference information, Dogan protested the recommendation and submitted to the City several favorable letters of reference from entities contacted by HDR. The City nonetheless awarded the contract to Centric-Jones.

Acting pursuant to the Colorado Open Records Act, § 24-72-201, et seq., C.R.S. (1988 Repl.Vol. 10B), Dogan then submitted a request to inspect the telephone survey notes. The City filed a petition in the trial court requesting that it be allowed to withhold the telephone notes on the basis that disclosure would do substantial injury to the public interest. Dogan filed a separate action seeking an order from the trial court requiring the City and its custodian of records, Robert Booze, to show cause why they should not be compelled to disclose the telephone survey notes. The two actions were consolidated.

The parties stipulated that the trial court could determine as a matter of law whether the telephone survey notes were “letters of reference concerning employment” and therefore exempted from disclosure pursuant to § 24-72-204(3)(a), C.R.S. (1988 Repl.Yol. 10B). Based upon the briefs and arguments of counsel and an in camera review of the disputed documents, the trial court found that the notes were letters of reference concerning employment and therefore granted the City’s request to be allowed to withhold the documents from inspection. Because of its ruling, the trial court did not need to address the City’s additional contention, based on § 24-72-204(6), C.R.S. (1988 Repl. Vol. 10B), that disclosure of the documents would “cause substantial injury to the public interest.”

Dogan contends that the trial court erred by determining that the telephone survey notes were letters of reference concerning employment and thereby exempted from disclosure. We agree.

The overall policy of the General Assembly in enacting the Colorado Open Records Act is set forth in the legislative declaration in § 24-72-201:

It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise specifically provided by law.

Notwithstanding the general policy favoring disclosure of public records, § 24-72-204(3)(a) contains various exceptions, including the following:

The custodian shall deny the right of inspection of the following records, unless otherwise provided by law; except that any of the following records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest under this subsection (3):
[[Image here]]
(III) Letters of reference.... (emphasis added)

The upshot of these provisions is that while the public at large is not entitled to inspect letters of reference, a person in interest is entitled to do so unless the records constitute “letters of reference concerning employment, licensing, or issuance of permits,” in which case they are unavailable even to the person in interest.

Our supreme court has recognized that exceptions to the broad, general policy of the Act favoring disclosure are to be narrowly construed. Sargent School District No. RE-33J v. Western Services, Inc., 751 P.2d 56 (Colo.1988). Also, because of the presumption in favor of disclosure and because the party opposing disclosure is likely to possess superior knowledge concerning the nature of the affected documents and information, the burden of establishing an exception rests with such party. Interna[458]*458tional Brotherhood of Electrical Workers Local 68 v. Denver Metropolitan Major League Baseball Stadium District, 880 P.2d 160 (Colo.App.1994).

Our primary task in interpreting a statute is to ascertain and give effect to the intent of the General Assembly. In ascertaining that intent, we must first look to the plain language of the statute itself, giving the terms their commonly understood and accepted meanings. People v. McNeese, 892 P.2d 304 (Colo.1995); Organ v. Jorgensen, 888 P.2d 336 (Colo.App.1994).

According to Black’s Law Dictionary 813 (5th Ed.1979), a letter is “a dispatch or epistle; a written or printed message; a communication from one person to another at a distance.” Certainly the telephone survey notes here do not fall within that definition.

Had the General Assembly intended to include telephone notes within the categories of documents excepted from inspection by persons in interest under the Act, it could easily have expanded the exception to include, for example, all writings relating to employment references. It did not do so.

Notably, the term “writings” is broadly defined in the Act to include “all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics.” Section 24-72-202(7), C.R.S. (1988 Repl.Vol. 10B). In contrast, by confining the exception here to “letters of reference concerning employment,” the General Assembly has evinced an intent to protect a much narrower category of public records from disclosure to interested persons.

To give the term “letters of reference concerning employment” the expansive reading the City advocates — to include telephone notes relating to bidding by outside contractors on public projects — would require us not only to reject the common and ordinary meanings of the statutory terms, but also to ignore the requirement that we narrowly construe the exceptions to disclosure. Such an interpretation would also frustrate the basic legislative purpose of the Act, which is to allow access to all public records not specifically exempted by law. See Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974); Pruitt v. Rockwell,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Westminster v. Dogan Construction Co.
930 P.2d 585 (Supreme Court of Colorado, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
914 P.2d 455, 19 Brief Times Rptr. 1289, 1995 Colo. App. LEXIS 256, 1995 WL 442226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-westminster-v-dogan-construction-co-coloctapp-1995.