The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 27, 2024
2024COA124
No. 23CA0995, Migoya v. Wheeler — Government — Colorado Open Records Act — Exceptions; Education — Licensed Personnel Performance Evaluation Act
The Colorado Open Records Act (CORA) provides that “[a]ll
public records shall be open for inspection by any person at
reasonable times, except as provided [in the exceptions set forth in
CORA] or as otherwise provided by law.” § 24-72-203(1)(a), C.R.S.
2024. A division of the court of appeals holds, as a matter of first
impression, that a statute outside CORA — section 22-9-109,
C.R.S. 2024, of the Colorado Licensed Personnel Performance
Evaluation Act (CLPPEA) — carves out a further exception to CORA
for the evaluation reports of school districts’ licensed personnel and
the public records used in preparing those reports. Concluding
that the requested disciplinary records of school administrators
were not subject to disclosure under CLPPEA, the division affirms, albeit on grounds other than those underlying the district court’s
decision. COLORADO COURT OF APPEALS 2024COA124
Court of Appeals No. 23CA0995 City and County of Denver District Court No. 22CV32315 Honorable Marie Avery Moses, Judge
David Migoya and Denver Gazette,
Plaintiffs-Appellants,
v.
Stacy Wheeler, in her official capacity as custodian of records, and Denver Public Schools,
Defendants-Appellees,
and
Denver School Leaders Association,
Intervenor-Appellee.
ORDER AFFIRMED
Division I Opinion by JUDGE LIPINSKY J. Jones and Hawthorne*, JJ., concur
Announced November 27, 2024
Rachael Johnson, Denver, Colorado, for Plaintiffs-Appellants
Semple, Farrington, Everall & Case, P.C., Jonathan P. Fero, M. Brent Case, Denver, Colorado, for Defendants-Appellees
Rosenblatt, Gosch & Reinken, PLLC, Joseph M. Goldhammer, William R. Reinken, Greenwood Village, Colorado, for Intervenor-Appellee *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 The Colorado Open Records Act (CORA), §§ 24-72-200.1 to
-205.5, C.R.S. 2024, rests on the principle that members of the
public have the right to know about their public officials’ conduct.
See Legis. Council, Colo. Gen. Assembly, Open Public Records for
Colorado, Rsch. Publ’n No. 126, at xi-xii, para. 5 (1967).
“[E]xcessive government secrecy, especially when imposed
arbitrarily by elected or administrative officials, can endanger the
freedom of speech concept embodied in the first amendment and
may threaten democracy generally.” Id. at xi, para. 1. The General
Assembly enacted CORA following the release of the Legislative
Council’s report on open public records, which noted Colorado’s
need for such a statute.
¶2 The touchstone of CORA is that “[a]ll public records shall be
open for inspection by any person at reasonable times, except as
provided [in the exceptions set forth in CORA] or as otherwise
provided by law.” § 24-72-203(1)(a), C.R.S. 2024. CORA defines
“[p]ublic records” as “all writings made, maintained, or kept by the
state, any agency, institution, a nonprofit corporation . . . , or
political subdivision of the state.” § 24-72-202(6)(a)(I), C.R.S. 2024.
1 ¶3 But CORA is far from limitless. Nineteen discrete exceptions
appear in the statute itself. See § 24-72-204(3)(a)(I)-(XXIII), C.R.S.
2024. An additional catch-all exception applies when, “in the
opinion of the official custodian” of a requested public record,
“disclosure of the contents of [the] record would do substantial
injury to the public interest.” § 24-72-204(6)(a).
¶4 In this case, we consider whether a statute outside the
confines of CORA — section 22-9-109, C.R.S. 2024, of the Colorado
Licensed Personnel Performance Evaluation Act (CLPPEA) — carves
out a further exception to CORA for the evaluation reports of school
districts’ licensed personnel, as well as the public records used in
preparing those reports. See § 22-9-109(1) (“Notwithstanding
section 24-72-204(3), an evaluation report and all public records, as
defined in section 24-72-202, that are used in preparing the
evaluation report are confidential . . . .”).
¶5 Plaintiffs, David Migoya and the Denver Gazette (jointly, the
Gazette), submitted a CORA request to the records custodian of
Denver Public Schools (DPS) for the disciplinary records of all DPS
administrators (the subject records) created during the 2021
calendar year. DPS denied the Gazette’s request, and the district
2 court upheld the denial. The Gazette appeals the court’s order
concluding that it is not entitled to inspect the subject records. We
affirm, albeit on grounds different from those underlying the court’s
decision.
I. Background Facts and Procedural History
¶6 On January 6, 2022, Migoya, a reporter for the Denver Gazette
newspaper, submitted a CORA request to Stacy Wheeler, in her
capacity as DPS’s 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.” (“FRISK” refers to DPS’s human resources standards for how
letters of warning, letters of reprimand, and letters regarding
suspension without pay are written.)
¶7 Although, on January 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
3 “personnel file exemption” of CORA, section 24-72-204(3)(a)(II)(A),
and in light of the “public policy favoring privacy [and] efficient
operation of schools.”
¶8 In an email to Wheeler dated January 26, 2022, Migoya
asserted that CORA’s personnel files exception “is wholly
inapplicable to the [subject] records,” and further, the “public policy
favoring privacy [or] efficient operation of schools” is not grounds for
refusing to disclose records under CORA.
¶9 In a response dated January 31, 2022, Wheeler said that
“CORA prohibits [DPS] from disclosing certain records, including
‘personnel files.’” Wheeler added that “CORA allows [DPS] to
withhold ‘records otherwise deemed open and subject to disclosure
and release’ if [DPS] has a good faith belief that ‘such release would
do substantial injury to the public interest.’”
¶ 10 The Gazette put DPS on notice that it would file an application
for an order to show cause under section 24-72-204(5)(a). It
subsequently filed a complaint, together with an application, in the
court. The Denver School Leaders Association (DSLA) filed a motion
to intervene, which the court granted over the Gazette’s objection.
(DSLA is “a labor organization with exclusive collective bargaining
4 representation rights for various classifications of school leaders” in
DPS.)
¶ 11 The court determined that the subject records are not exempt
from disclosure under CORA’s personnel files exception. But the
court also found that DPS had reserved its right to argue that
public disclosure of the subject records “would do substantial
injury to the public interest.” (If a court orders that records
requested under CORA should be open to public inspection, “the
official custodian of public records may then apply to the district
court to restrict disclosure if such disclosure would do substantial
injury to the public interest.” Gumina v. City of Sterling, 119 P.3d
527, 532 (Colo. App. 2004) (citing § 24-72-204(6)(a)).
¶ 12 The court permitted DPS to file, no later than December 2,
2022, an application to restrict access to the subject records
premised on the “substantial injury to the public interest” exception
contained in section 24-72-204(6)(a), and it ordered that any
response must be filed no later than December 9, 2022. DPS and
DSLA filed a joint motion to bar the Gazette from accessing the
subject records under section 24-72-204(6)(a) on December 2. The
Gazette filed an objection to the joint motion, and the court
5 scheduled an evidentiary hearing on the motion for January 23,
2023.
¶ 13 Three days before the hearing, DSLA filed with the court a
letter it had sent to the Gazette’s counsel on January 13, 2023 (the
DSLA letter). In its letter, DSLA previewed the anticipated
testimony of its witness Dr. Moira Coogan, a DPS principal, and
argued, for the first time in this case, that the subject records were
protected from disclosure under section 22-9-109(1) of CLPPEA, as
well as under CORA.
¶ 14 The Gazette responded with two filings. First, it filed a motion
in limine in which it argued, among other points, that the court
should preclude Coogan from testifying at the hearing because her
testimony would be “non-factual and irrelevant.” Second, it filed a
motion to strike the DSLA letter because the letter constituted an
unauthorized surreply or supplemental brief.
¶ 15 At the hearing, the court denied the Gazette’s motions,
although it granted the Gazette’s counsel an opportunity to respond
to the arguments raised in the DSLA letter. The court further
allowed the Gazette to object on relevance grounds to testimony
presented at the hearing and to address the legal arguments in the
6 DSLA letter “during closing arguments and through the submission
of post-hearing proposed findings of fact and conclusions of law.”
The Gazette’s counsel consented to the court’s proposed
accommodations.
¶ 16 The court then heard testimony from Jennifer Troy, a senior
DPS administrator. She testified that school administrators
reasonably expected that their evaluation reports and the public
records used in preparing them would remain confidential and that
upending such expectation would make it difficult for DPS to recruit
and retain school leaders. She also explained that disclosure would
damage school leaders’ trust in the supervisors who coach and
encourage the leaders to learn from their mistakes.
¶ 17 Coogan testified that all DPS principals and assistant
principals must hold professional licenses and are evaluated under
CLPPEA. She said that any documented corrective action regarding
a principal or assistant principal is part of the “body of evidence”
used in preparing their evaluations.
¶ 18 In a written order, 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]
7 would substantially injure the public.” The court specifically found
that disclosure of the subject records would “likely result in DPS
having substantial difficulty retaining DPS school leaders and
recruiting new candidates to serve as school leaders”; negatively
impact “the goal of coaching and improving DPS school leaders”;
and have “a chilling effect on the ability of supervisors to effectively
train school principals, assistant principals and administrators.”
¶ 19 The court concluded that, for these reasons, the Gazette was
not entitled to inspect the subject records because of CORA’s
substantial injury exception. While the court acknowledged the
CLPPEA argument that DSLA raised in its letter and at the hearing,
the court did not rely on section 22-9-109(1) in concluding that the
subject records were exempt from disclosure. The Gazette appeals
the court’s order denying its request to inspect the subject records.
II. Analysis
¶ 20 The Gazette contends that the court erred by
(1) allowing DSLA to file the DSLA letter, which the Gazette
characterizes as an unauthorized surreply or
supplemental brief, and by allowing DSLA to present new
arguments in the DSLA letter;
8 (2) permitting Coogan to provide what the Gazette
characterizes as improper opinion testimony;
(3) concluding that DPS and DSLA met their burden of
proving that disclosing the subject records would cause
substantial injury to the public interest; and
(4) failing to address the Gazette’s request for an award of
attorney fees and costs under section 24-72-204(5)(b) of
CORA.
¶ 21 We hold that CLPPEA protected the subject records from
disclosure, and we do not reach the separate issue of whether their
disclosure would cause substantial injury to the public interest
under CORA.
A. The DSLA Letter
¶ 22 The Gazette first contends that the court erred by allowing
DSLA to assert, only days before the hearing, the legal arguments
presented for the first time in the DSLA letter. Similarly, the
Gazette argues that the DSLA letter was a surreply or supplemental
brief that DSLA could not file without prior leave of court.
¶ 23 We review a district court’s decision to accept or reject a brief
for an abuse of discretion. See Olson v. State Farm Mut. Auto. Ins.
9 Co., 174 P.3d 849, 860 (Colo. App. 2007) (holding that a trial court
has the discretion to deny a request to file a surreply); see also U.S.
Bank Tr., N.A. v. Rudick, 67 N.Y.S.3d 646, 647 (App. Div. 2017)
(“While unauthorized surreplies containing new arguments
generally should not be considered,” a court has “the authority to
regulate the motion practice before it, as well as the discretion to
determine whether to accept late papers or even surreply papers for
‘good cause.’” (quoting N.Y. C.P.L.R. 2214(c) (McKinney 2024))). “A
trial court abuses its discretion if its decision is manifestly
unreasonable, arbitrary, or unfair, or it misapplies the law.” HMLL
LLC v. MJM Holdings Ltd., 2024 COA 85, ¶ 17, ___ P.3d ___, ___.
¶ 24 The Gazette cites federal court authorities not binding on this
court to support its argument that DSLA required leave of court
before it could submit its purported surreply or supplemental brief.
But the Gazette fails to point us to any binding authority holding
that a Colorado state court abuses its discretion by accepting a
“surreply” or a “supplemental brief” that the court did not
previously authorize, particularly if, as here, the document raises
relevant legal issues, and the court takes affirmative steps to
minimize any resulting prejudice to the opposing party.
10 ¶ 25 Contrary to the Gazette’s assertion, for two reasons, the
authorities and arguments raised in the DSLA letter were relevant
to whether the Gazette had the right to inspect the subject files.
First, those authorities and arguments were germane to
determining whether a “substantial injury to the public interest”
justified nondisclosure of the subject records under section
24-72-204(6)(a). In its order concluding that the Gazette was not
entitled to inspect the subject records, the court explained that
DPS’s administrators had a reasonable expectation that the subject
records would be kept confidential because CLPPEA protects from
disclosure the evaluation reports of school districts’ licensed
personnel and the public records used in preparing them. See
§ 22-9-109(1).
¶ 26 DSLA explained in its letter that the collective bargaining
agreement between DPS and DSLA informed the school
administrators that the subject records would be kept confidential,
consistent with section 22-9-109(1). DSLA also noted that
“substantial injury to the public interest” would result if DPS
disregarded those expectations by publicly disclosing documents
that the school administrators understood would be kept
11 confidential. Specifically, DSLA asserted, with support from Troy’s
testimony, that “disclosure of the [subject] records would impair the
ability of administrators to provide candid and accurate
evaluations, and that DPS would have trouble recruiting and
retaining school leaders” as a consequence. The Gazette did not
call any witnesses at the hearing, much less witnesses to rebut
Coogan’s and Troy’s testimony.
¶ 27 Second, as we discuss below in Part II.C.2, the authorities and
arguments in the DSLA letter addressed an independent legal basis
for denying the Gazette’s request to inspect the subject files. In
denying the Gazette’s motion to strike the DSLA letter, the court
explained that it “want[ed] to get this case right,” apparently
meaning that it wished to review all applicable legal authorities. As
the court explained,
[W]hether it’s prejudicial to [the Gazette] or not, I have to consider what the legal structure is that exists . . . and what the expectations are. So I can’t ignore a statute, I can’t ignore a pattern of practice, right? Just because it might prejudice [the Gazette] because [DSLA] raised it at the last minute. I can’t ignore that stuff.
12 ¶ 28 Moreover, the court took steps to minimize any prejudice to
the Gazette resulting from the court’s consideration of the DSLA
letter, even though DSLA tendered its letter to the court only three
days before the hearing. The court noted, “In my toolbox, . . .
things that I can do to remedy prejudice are grant continuances, . .
. allow additional briefing, things along those lines.” The court said
it would allow the Gazette “to respond to the legal arguments made
by DSLA during closing arguments and through the submission of a
post-hearing proposed findings of fact and conclusions of law.”
¶ 29 The Gazette’s counsel accepted the court’s offer of an
opportunity for “additional briefing at the close of this hearing.”
Significantly, the Gazette’s counsel expressed no objection to the
court’s proposed procedure to minimize any prejudice to the Gazette
resulting from the filing of the DSLA letter so close to the hearing
date.
¶ 30 These efforts demonstrate that the court’s decision to accept
the DSLA letter was not “manifestly unreasonable, arbitrary, or
unfair,” as the Gazette now contends, but rather reflected the
court’s exercise of judicial discretion to ensure that the issues in
this case were fairly and thoroughly adjudicated. See HMLL LLC,
13 ¶ 17, ___ P.3d at ___. Therefore, we hold that the court did not
abuse its discretion by considering the arguments and authorities
in the DSLA letter or by allowing DSLA to submit it without prior
leave of court.
B. Coogan’s Testimony
¶ 31 The Gazette further contends that the court erred by allowing
Coogan to provide what it characterizes as improper opinion
testimony interpreting CLPPEA.
¶ 32 A lay witness may testify to opinions or inferences that are
“(a) rationally based on the perception of the witness, (b) helpful to a
clear understanding of the witness’ testimony or the determination
of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of [CRE] 702.” CRE 701.
We review a district court’s decision to admit evidence for an abuse
of discretion. Wolven v. Velez, 2024 COA 8, ¶ 9, 547 P.3d 423, 426.
¶ 33 Coogan’s testimony did not exceed the bounds of CRE 701.
DPS and DSLA’s CORA argument rested primarily on their
contention that disclosing the subject records would result in
substantial injury to the public interest. The school administrators’
expectation that their evaluation reports and the public records
14 used in preparing those reports would remain confidential rested, in
part, on their understanding of CLPPEA and the other statutes that
DPS and DSLA cited in their court filings. To support these
arguments, they called Coogan and other witnesses to explain the
administrators’ expectations and the grounds for those
expectations — not to interpret the cited statutes.
¶ 34 For example, based on her firsthand experience as a DPS
principal and the president of DSLA, Coogan testified how CLPPEA
affects her work in evaluating employees. Specifically, she testified,
“My expectation would [be] — that it would be confidential because
in the statute that governs all of our evaluations, it’s laid out
that . . . the evaluation report and the evaluation ratings are
confidential for everybody covered under that statute, which would
include principals and assistant principals.” Coogan’s testimony
encompassed only her own expectations regarding how CLPPEA
affected her job responsibilities. This factual information complied
with CRE 701 and was within the scope of her personal knowledge.
See CRE 602 (stating that a fact witness may only testify to a
matter if the witness has personal knowledge of the matter).
15 ¶ 35 Further, Coogan’s testimony supported DSLA’s argument that
CLPPEA provides an independent basis to deny disclosure.
¶ 36 Because the testimony was relevant and complied with CRE
701, we hold that the court did not abuse its discretion by allowing
it.
C. Disclosure of the Subject Records
¶ 37 Although the court concluded that the Gazette was not
entitled to inspect the subject records because their disclosure
would do “substantial injury to the public interest,”
§ 24-72-204(6)(a), we resolve this appeal by applying CLPPEA rather
than CORA. We do so because section 22-9-109(1) independently
bars disclosing the subject records to the Gazette. Thus, we need
not reach the parties’ CORA arguments.
1. Preservation and Standard of Review
¶ 38 The Gazette argues that we should not consider CLPPEA as an
independent basis to deny inspection because DSLA did not
preserve its CLPPEA argument. We disagree.
¶ 39 “If a party raises an argument to such a degree that the court
has the opportunity to rule on it, that argument is preserved for
appeal.” Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50, 532
16 P.3d 776, 788 (quoting Brown v. Am. Standard Ins. Co. of Wis., 2019
COA 11, ¶ 21, 436 P.3d 597, 600). In the DSLA letter, which, as
discussed above, the court accepted in its discretion, DSLA raised
CLPPEA as an independent basis to deny disclosure of the subject
records. It is of no consequence that the court chose to resolve the
issue under CORA instead. Because DSLA presented the “sum and
substance” of its CLPPEA argument to the court, it is properly
preserved for appellate review. Id. (quoting Berra v. Springer &
Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)).
¶ 40 We are likewise unpersuaded by the Gazette’s argument that
we should not consider CLPPEA because the Gazette did not
address the statute in its opening brief. The Gazette misses the
point that DSLA included the CLPPEA argument in its answer brief
in response to the CORA argument in the Gazette’s opening brief.
The Gazette does not cite any authorities barring us from
considering responsive arguments in an answer brief. Cf. People v.
Rainer, 2013 COA 51, ¶ 80, 412 P.3d 520, 537 (declining to
consider the appellee’s new arguments made during oral argument
that were not made either in the trial court or in the answer brief on
appeal), rev’d on other grounds, 2017 CO 50, 394 P.3d 1141. In any
17 event, we may affirm the court’s decision on any ground supported
by the record. See Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe,
107 P.3d 402, 406 (Colo. App. 2004).
¶ 41 “Issues of statutory construction . . . are questions of law that
we review de novo.” Carousel Farms Metro. Dist. v. Woodcrest
Homes, Inc., 2019 CO 51, ¶ 40, 442 P.3d 402, 411. When
interpreting a statute, “[w]ords and phrases are to be given their
plain and ordinary meanings, read in context, and construed
according to the rules of grammar and common usage.” Id.
¶ 42 “In evaluating a district court’s ruling under CORA, we review
the court’s factual findings for clear error but review its
construction and application of CORA de novo.” Simpson v.
Harmer, 2024 COA 30, ¶ 14, 551 P.3d 669, 673; see also Jefferson
Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 2016 COA 10,
¶ 13, 378 P.3d 835, 838. Although no Colorado appellate court has
previously applied these general standards of review to CLPPEA, we
conclude that the standards of review governing a district court’s
CORA rulings also govern appellate review of CLPPEA rulings.
18 2. CLPPEA Bars Disclosure of the Subject Records
¶ 43 The General Assembly explained in CLPPEA that “[a] system to
evaluate the effectiveness of licensed personnel is crucial to
improving the quality of education in this state” and “declare[d] that
such a system shall be applicable to all licensed personnel in the
school districts . . . throughout the state.” § 22-9-102(1)(a), C.R.S.
2024. Among other provisions, CLPPEA prescribes the processes
that the state’s educational bodies must follow when evaluating
their teachers and administrators. See §§ 22-9-104 to -108, C.R.S.
2024.
¶ 44 Section 22-9-109(1) of CLPPEA provides that
“[n]otwithstanding section 24-72-204(3), an evaluation report and
all public records . . . that are used in preparing the evaluation
report are confidential.” Section 24-72-204(3)(a) is the CORA
provision that lists the types of public records for which “[t]he
custodian shall deny the right of inspection . . . , unless otherwise
provided by law.”
¶ 45 Under section 22-9-109(1), “an evaluation report and all
public records . . . that are used in preparing the evaluation report”
may only be disclosed “to an educator being evaluated, to the duly
19 elected and appointed public officials who supervise the educator’s
work, and to a hearing officer conducting a hearing . . . or the court
of appeals reviewing a decision of the local board of education.” An
evaluation report and all public records used in preparing the
evaluation report are otherwise confidential. (Section 22-9-109(1)
also contains two exceptions not applicable here: Certain
“evaluation report[s] of the chief executive officer of any school
district . . . must be open for inspection by any person at
reasonable times,” and “[e]valuation reports and all public
records . . . used in preparing the evaluation reports are available to
individuals responsible for reviewing an appeal made by a
nonprobationary teacher.” § 22-9-109(1)(a)-(b).)
¶ 46 The use of “[n]otwithstanding” in the first clause of section
22-9-109(1) informs us that the General Assembly intended
subsection (1) to make clear that the disclosure exceptions in CORA
do not preclude other statutory exceptions. “The word
‘Notwithstanding’ is one in opposition to, and not one of
compatibility with, another statute. In fact, the word
‘Notwithstanding’ actually means ‘in spite of.’” Theodore Roosevelt
Agency, Inc. v. Gen. Motors Acceptance Corp., 398 P.2d 965, 966
20 (Colo. 1965) (first citing The New Roget’s Thesaurus of the English
Language in Dictionary Form (Norman Lewis ed. 1961); and then
quoting Webster’s New International Dictionary (2d ed. 1958)); see
Premier Car Rental, Inc. v. Gov’t Emps. Ins. Co., 637 N.Y.S.2d 177,
178-79 (App. Div. 1996) (“[N]otwithstanding” means “without
prevention or obstruction from or by; in spite of.” (quoting Webster’s
Third New International Dictionary 1545 (1961))). Further, CORA
itself contemplates that other statutes can provide an exception to
CORA’s disclosure requirements. See § 24-72-204(1)(a) (“The
custodian of any public records shall allow any person the right of
inspection of such records or any portion thereof except . . . [if]
[s]uch inspection would be contrary to any state statute.”).
¶ 47 Thus, section 22-9-109(1) prohibits disclosing evaluation
reports of licensed school administrators and all public records
used in preparing such reports, regardless of whether such
documents are subject to disclosure under CORA. For this reason,
we examine whether, as a matter of law, the subject records are the
type of documents that section 22-9-109(1) protects from
disclosure.
21 ¶ 48 The subject records are “[p]ublic records” because they are
“writings made, maintained, or kept by . . . [a] political subdivision
of the state . . . for use in the exercise of functions required or
authorized by law . . . or involving the receipt or expenditure of
public funds.” § 24-72-202(6)(a)(I). “[E]very . . . school district . . .
within this state” is a “[p]olitical subdivision.” § 24-72-202(5). DPS
is undisputedly a school district. The evidence showed that DPS
makes, maintains, or keeps the subject records “for use in the
exercise of functions required or authorized by law” — evaluations
of DPS administrators. § 24-72-202(6)(a)(I).
¶ 49 The court found, based on the witnesses’ testimony, that the
subject records consist exclusively of the type of documents “used
in preparing” evaluation reports of DPS administrators. § 22-9-
109(1). We do not second-guess that finding of fact because the
record supports it. See Carousel Farms Metro. Dist., ¶ 19, 442 P.3d
at 407 (explaining that appellate courts do not make findings of
fact). Therefore, under section 22-9-109(1)’s plain language, the
Gazette is not entitled to inspect the subject records.
¶ 50 Our interpretation of CLPPEA is consistent with the
regulations implementing the statute. Those regulations do not call
22 into question our determination that a school district employee’s
disciplinary records are part of the body of evidence used in
preparing the employee’s evaluation report. See Dep’t of Educ.
Rules 1.14, 2.2(D), 2.2(D)(1), 5.1(A)(3), 5.1(A)(4), 1 Code Colo. Regs.
301-87.
¶ 51 All Colorado school districts must use a “Principal Evaluation
System” when evaluating their principals. Id. at Rule 1.14. A
school district’s principal evaluation system must include
consideration of the principal’s “professionalism through ethical
conduct, reflection, and external leadership,” including whether the
principal “demonstrate[s] high standards for professional conduct.”
Id. at Rules 2.2(D), 2.2(D)(1). In addition, the principal’s evaluation
must include “the weighting and aggregation of evidence of
performance.” Id. at Rule 1.14. These rules indicate that a
principal’s disciplinary history is part of the body of evidence that
informs the principal’s evaluation report. It would be surprising
indeed if a school district did not use documentation of discipline
imposed against a principal when evaluating the principal.
¶ 52 Further, the purposes of a school district’s principal
evaluation system include, as relevant here, “serving as
23 documentation for an unsatisfactory performance dismissal
proceeding” and “serving as a measurement of the professional
growth and development of licensed personnel.” Id. at Rules
5.1(A)(3), 5.1(A)(4). Disciplinary records must be included in the
documentation for an unsatisfactory performance dismissal
proceeding.
¶ 53 Moreover, DPS’s policies and training materials for evaluators
reinforce our interpretation of CLPPEA. DPS instructs its
evaluators to “utilize a robust body of evidence in scoring leaders
that includes continuous improvement processes, coaching
conversations, observations, school/classroom visits, walk
throughs, survey data, CollaboRATE feedback, informal feedback,
staff and community input, 1:1 meetings, goals, the school[’]s
strategic plan, the Black Excellence Plan and professional practice
and assessment data.” Denver Pub. Schs., Leadership Excellence
and Development, LEAD Framework 6 (Aug. 2023),
https://perma.cc/XFX3-QZTE. Nothing in that body of evidence
suggests that documents concerning an administrator’s disciplinary
history are excluded when the administrator is evaluated.
24 ¶ 54 The Gazette argues that CLPPEA has no bearing on its request
for the subject records because CLPPEA “narrowly applies to the
enumerated evaluative paperwork public agencies must generate to
comply with CLPPEA’s operative provisions.” But we must construe
CLPPEA’s scope as drafted, not as the Gazette characterizes it. As
explained above, CLPPEA unequivocally bars school districts from
disclosing to third parties any licensed professionals’ “evaluation
reports” and the documents “used in preparing” those reports. The
record shows that the subject records are among the documents
“used in preparing” the evaluation reports of DPS administrators.
¶ 55 In addition, the Gazette urges us to interpret CLPPEA narrowly
to avoid “exempt[ing] vast categories of information from
disclosure.” But again, we must apply CLPPEA as drafted. Our role
is not to second-guess the General Assembly’s policy decisions. If
the Gazette believes that CLPPEA prevents members of the public
from accessing an excessive number of documents that are matters
of public interest, its remedy lies in the legislative, not the judicial,
branch of our state government.
25 D. Attorney Fees
¶ 56 The Gazette requested an award of attorney fees and costs, as
well as appellate fees, under section 24-72-204(5)(b) of CORA. The
parties dispute whether the Gazette preserved its request. But
regardless of whether the issue is preserved, the Gazette is not
entitled to an award of attorney fees and costs because it did not
succeed in obtaining a court order requiring DPS to allow it to
inspect the subject records. See id.
¶ 57 The Gazette further argues that it is entitled to an award of
fees and costs because it “prevailed on the issue of whether the
[subject] records were ‘personnel files’” when the court concluded,
midway through the proceedings, that DPS could not withhold the
subject records on that basis. But the litigation did not end there.
¶ 58 CORA does not authorize fee and cost awards on the grounds
that the requester won a preliminary legal skirmish if the requester
ultimately failed to win a ruling granting access to the requested
documents. The relevant language of CORA provides that, “[u]nless
the court finds that the denial of the right of inspection was proper, it
shall order the custodian to permit such inspection and shall award
court costs and reasonable attorney fees to the prevailing applicant
26 in an amount to be determined by the court.” § 24-72-204(5)(b)
(emphasis added).
¶ 59 At the conclusion of the proceedings, the court determined
that “the denial of the right of inspection was proper.” In light of
this determination and our affirmance of the court’s ruling, the
Gazette was not a “prevailing applicant” under CORA. See Colo.
Republican Party v. Benefield, 337 P.3d 1199, 1206 (Colo. App.
2011) (“[A] prevailing applicant is one who obtains an order
directing ‘the custodian to permit . . . inspection’ of a given public
record.” (quoting § 24-72-204(5), C.R.S. 2011)), aff’d, 2014 CO 57,
329 P.3d 262.
¶ 60 Thus, we deny the Gazette’s request for an award of attorney
fees and costs.
III. Disposition
¶ 61 The order is affirmed.
JUDGE J. JONES and JUDGE HAWTHORNE concur.