By Jeffrey A. Roberts
CFOIC Executive Director

A Denver Gazette reporter is not entitled to inspect the disciplinary records of Denver school administrators because a state statute protects the confidentiality of educator evaluations and all documents “used in preparing” those reports, the Colorado Court of Appeals decided Wednesday.

In a ruling that carves out a major exception to existing case law regarding the disclosure of public employees’ disciplinary files, a three-judge panel of the state’s second-highest court determined that it must construe the language of the Colorado Licensed Personnel Performance Act (CLPPEA) “as drafted.”

And that statute “unequivocally bars school districts from disclosing to third parties” the evaluation reports and any related records of licensed professional educators — including the “FRISK” summaries sought by Gazette reporter David Migoya, wrote Judge Lino Lipinsky de Orlov. (FRISK is a human resources acronym for facts, rule, impact, suggestions and knowledge.)

“Our role is not to second-guess the General Assembly’s policy decisions,” he added. “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.”

But state lawmakers in the 2024 session expanded the confidentiality statute to include not just licensed educators but other types of educators who are evaluated, including teachers, principals, administrators, special services providers and education support professionals.

When the Colorado Freedom of Information Coalition expressed concerns about Senate Bill 24-132 in a Senate committee hearing, a prime sponsor of the measure insisted it would not shield the disciplinary records of educators “because a disciplinary record is not the same thing as an evaluation framework. The evaluation framework is not about discipline. It’s about growth. It’s about setting goals,” said Sen. Rachel Zenzinger, D-Arvada.

In The Gazette’s lawsuit against Denver Public Schools, a Denver District Court judge ruled  in 2023 that four years of FRISK disciplinary memos Migoya requested about the conduct of principals and other administrators are not personnel files exempt from disclosure under the Colorado Open Records Act (CORA). But she agreed with DPS that allowing public inspection “would substantially injure the public interest.”

The Court of Appeals didn’t address that CORA question. Instead, it accepted the Denver School Leaders Association’s argument that CLPPEA “independently bars disclosing the subject records to the Gazette.” Although CORA “rests on the principle that members of the public have the right to know about their public officials’ conduct,” the appellate opinion notes, the records law is “far from limitless” because other statutes “outside the confines of CORA” carve out further exceptions.

As amended by the legislature this year, CLPPEA says “an evaluation report and all public records, as defined in section 24-72-202, that are used in preparing the evaluation report are confidential and are available only to an educator being evaluated, to the duly elected and appointed public officials who supervise the educator’s work…”

But still available to the public is the evaluation report of “the chief executive officer of any school district.”

“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,” the court of appeals opinion says. The district court found, based on the testimony of DPS officials, that the disciplinary records requested by Migoya were used in preparing the evaluation reports of DPS administrators, it adds.

“The disciplinary records of school principals and administrators help inform parents and communities about the qualifications of those working in our schools, and the decision to withhold them is counter to the public interest,” said Rachael Johnson, an attorney for the Reporters Committee for Freedom of the Press who argued the case for The Gazette.

The ruling does not affect the disciplinary records of public employees in Colorado who are not educators.

The Court of Appeals in other rulings has affirmed that CORA’s “personnel files” exemption applies narrowly to “home addresses, telephone numbers, (personal) financial information,” and other similar “personal, demographic information” maintained because of the employer-employee relationship. And “performance ratings” are specifically excluded from the definition of closed personnel files.

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