By Jeffrey A. Roberts
CFOIC Executive Director

The state’s second-highest court Thursday affirmed a judge’s order to disclose video surveillance footage showing three Woodland Park school board members talking with a candidate for superintendent after a public meeting in December 2022.

The school district had appealed the ruling by Teller County District Court Judge Scott Sells, contending the recordings would reveal “specialized details” of security arrangements, “such as a security camera’s field of view, quality of picture, or times of operation.” The footage “could be used by someone — perhaps years in the future — to plan harm,” its lawyers argued.

But that argument “would essentially mean that, as a matter of law, all security camera footage is exempt from inspection under” the Colorado Open Records Act, a three-judge panel of the Colorado Court of Appeals determined. “We are aware of no authority — and the School District does not cite any — that suggests CORA includes a per se exemption for security camera footage.”

Instead, the appellate judges wrote, a discretionary exception in CORA “requires the School District to demonstrate that the specialized details of the security camera footage would ‘be useful to a person in planning an attack on critical infrastructure.’” The district “did not present any evidence … to show the court that the security camera footage revealed anything that would aid one in planning an attack.”

“If the cameras did have a blind spot, or if some manner of their operation could aid someone planning an attack, the School District needed to present evidence of that to the district court.”

Woodland Park parent Erin O’Connell sued for the surveillance video last year after successfully showing that the school board had violated the Colorado Open Meetings Law by discussing a charter school’s application to the district under a vague “BOARD HOUSEKEEPING” agenda item. (She is represented in both lawsuits by attorney Eric Maxfield, a board member of the Colorado Freedom of Information Coalition.)

A court filing from O’Connell suggested the footage from Dec. 19, 2022, could show “compliance, or non-compliance, with the Colorado Open Meetings Law” by certain school board members, although she did not assert an open meetings violation in her CORA lawsuit. In court, an attorney for the school district acknowledged that three unnamed members of the board talked with superintendent candidate Ken Witt (who later was appointed superintendent) after the school board adjourned the evening of Dec. 19 and Witt was waiting for a ride home. But he characterized the conversation as “informal and personal.”

“The School District disputes that the recording of the conversation was a public record because the conversation was about personal matters. But there is no evidence of this in the record,” the Court of Appeals opinion says. Factual findings, it adds, “may not rest only on statements of counsel” and the district did not ask the judge to review the recordings in camera.

NBC News obtained the footage, which has no audio, and published it in a May 9, 2023, story about how conservatives had transformed the school district. It shows Witt and school board members David Illingworth, Cassie Kimbrell and David Rusterholtz talking privately for eight minutes.

Thursday’s opinion was not published, meaning the Court of Appeals ruling doesn’t set a precedent for other courts in Colorado.

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