By Jeffrey A. Roberts
CFOIC Executive Director
A Denver District Court judge “misapprehended” the scope and purpose of CORA’s “substantial injury to the public interest” exemption when she ruled in April that the discipline records of Denver Public Schools administrators should be kept confidential, the Colorado Freedom of Information Coalition argued in a court filing Thursday.
A proposed friend-of-the-court brief submitted by CFOIC asks the Colorado Court of Appeals to release four years of “FRISK” summaries requested by Denver Gazette investigative reporter David Migoya.
Although Judge Marie Avery Moses determined most of the records sought by Migoya were not “personnel files,” exempt from disclosure under the Colorado Open Records Act, she agreed with DPS that allowing public inspection “would substantially injure the public.”
The judge found that Denver school principals and other administrators “understand and expect” that their discipline records are private because of “established policies and practices” and a state statute shielding the evaluation records of licensed educators.
Release of the FRISK memos would create retention and recruitment problems for DPS and chill the ability of supervisors to coach and mentor school leaders, she also ruled. The Denver Gazette “did not present any specific evidence regarding a compelling public interest in access to all of DPS’s FRISK records for school leaders,” Avery Moses wrote in her order. (FRISK is an acronym for facts, rule, impact, suggestions and knowledge.)
But the CFOIC brief, prepared by attorney Madeline Rana of the ZwillGen law firm in Washington, D.C., says the judge’s ruling “sets a precedent sharply at odds with CORA’s presumption of public access and goal of public oversight, suggesting that generalized and foreseeable privacy concerns may warrant nondisclosure of public records for public officials at all levels of state and municipal government.”
Avery Moses “failed to recognize the significant public interest in access to the FRISK records,” Rana wrote, “both when the records reflect egregious misconduct and when they reflect lesser misconduct.”
A provision in CORA allows a court to restrict the availability of records that might otherwise be open for inspection upon making a determination that “disclosure would cause substantial injury to the public interest.”
In the CFOIC brief, Rana points out that this exemption to CORA’s presumptive right of access “is to be used only in those extraordinary situations which the General Assembly could not have identified advance.” That was the opinion of the Colorado Court of Appeals in a 2000 ruling concerning autopsy reports on victims of the 1999 shootings at Columbine High School and in a ruling two years earlier.
In the 2000 opinion, the Court of Appeals applied the “substantial injury to the public interest” exemption to Columbine autopsy records, finding that “the overwhelming grief caused by the nature and extent of this tragedy constituted an extraordinary situation.” But in The Denver Gazette’s case, Rana argued, “no ‘extraordinary situation’ exists that the General Assembly could not have identified in advance.”
The state legislature could have anticipated DPS’ concerns about employee retention and recruiting, “but it did not choose to codify them in one of the enumerated CORA exemptions,” CFOIC’s brief says. “This aligns with CORA’s purpose of facilitating public oversight into how public officials perform their duties.”
“By allowing concerns about administrators’ reputations to trump the public’s right of access to information about how public officials carry out their official duties,” Avery Moses’ decision laid the foundation for other public officials to invoke the “substantial injury to the public interest” exemption in CORA “whenever the release of records would cause embarrassment, potentially hindering recruiting efforts, or contribute to other speculative and foreseeable harms,” Rana wrote.
CFOIC’s brief cites a December 2022 story by Migoya to show the public interest in obtaining school administrators’ disciplinary records. The article is about a DPS principal “with a history of financial woes” who was investigated over allegations she misspent more than $175,000 on district credit cards only to keep her job and win a promotion before eventually resigning amid a different investigation.
“Public oversight into how school administrators perform their duties is essential for accountability,” CFOIC’s brief says.
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