By Jeffrey A. Roberts
CFOIC Executive Director
A judge Tuesday ordered Larimer County to publicly disclose the narrative portions of performance evaluations for two former employees of The Ranch, the county’s fairgrounds complex and events center.
In response to an April 18 Colorado Open Records Act (CORA) request from Chris Wood, editor and publisher of BizWest, the county had gone to court seeking an order allowing it to withhold the documents. David Ayraud, deputy county attorney, contended the employees “maintain an expectation of privacy.”
But, after conducting an in camera review of the narratives, Larimer County District Court Judge C. Michelle Brinegar decided “the compelling public interest in access to the information” outweighs the expectation of privacy for Chris Ashby and Diana Frick, who resigned their positions as The Ranch’s director and assistant director, respectively.
Public employees have a legitimate expectation of privacy in their personnel files, Brinegar wrote in her order, but “the expectation of privacy is not … without limits. The reasonable expectation of privacy may depend significantly upon the nature of the position. For example, a high ranking or elected official may have a far lesser expectation of privacy given their specific position. An ordinary employee would likely have a far greater expectation of privacy.”
In this case, the judge noted, BizWest sought the performance evaluation narratives of the former director and assistant director of a taxpayer-funded project — employees with “a lower expectation of privacy than a rank-and-file employee.”
Further, Ashby and Frick both resigned their positions from a voter-approved project that was delayed, “leaving questions as to ‘why?’ in the minds of some in the public.”
“The public has a compelling interest in knowing why — almost five years after voters approved of the expansion of the Ranch — Larimer County only recently broke ground on the first of the promised improvements,” wrote attorney Rachael Johnson of the Reporters Committee for Freedom of the Press in a brief supporting Bizwest’s request for the records.
Johnson’s brief points out that CORA’s exemption for “personnel files” does not include a public employee’s “performance ratings, reviews, evaluations, narratives or the like.”
Ayraud, in a motion filed in July, cited a 2018 case in which a Larimer County district court “held that performance narratives do not fall under the ‘personnel files’ exception.” But the judge in that ruling, he noted, said the privacy of performance narratives versus the public’s right to disclosure should be “determined on a case-by-case basis.”
Regarding the performance narratives for Ashby and Frick, Ayraud invoked a CORA provision that permits records custodians to seek an order prohibiting disclosure of public records if they believe the information “would do substantial injury to the public interest.”
The provision also allows a records custodian to ask for an order restricting disclosure if the custodian “is unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the public record is prohibited.”
“The Court looked at the totality of the circumstances regarding this particular case and these particular employees,” the judge wrote in her order. “When considering the nature of the narrow expectation of privacy the subjects enjoyed on account of their positions as Director and Assistant Director, the compelling public interest in access to the information, and the manner in which the information will be disclosed, the Court finds the performance narratives ought to be disclosed …”
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