City of Westminster v. Dogan Const. Co., Inc.

Decision Date13 January 1997
Docket NumberNo. 95SC617,95SC617
Citation930 P.2d 585
Parties21 Colorado Journal 31 CITY OF WESTMINSTER, a home-rule municipal corporation; and Robert Booze, Custodian of Records, Petitioners, v. DOGAN CONSTRUCTION COMPANY, INC., Respondent.
CourtColorado Supreme Court

Martin R. McCullough, City of Westminster City Attorney, Westminster, for Petitioners.

Wells, Love & Scoby, L.L.C., Kenneth D. Robinson, Boulder, for Respondent.

Justice LOHR delivered the Opinion of the Court.

This case presents the issue of whether the written results of telephone interviews with the references of a bidder on a municipal construction project, memorialized in notes on preprinted questionnaire forms, are "letters of reference concerning employment" for the purposes of the Colorado Open Records Act (Act). See §§ 24-72-201 to -206, 10B C.R.S. (1988 & 1996 Supp.). Dogan Construction Company, Inc. (Dogan), a bidder on a large construction project for the City of Westminster (City), brought an action seeking to compel the City to permit inspection of questionnaires that the City had used to record the results of telephone interviews conducted by the City's engineers with the bidder's references. The district court consolidated the case with the City's own action seeking a determination that it could properly deny access to such questionnaires, and the district court then held that the City could withhold the forms from inspection by Dogan pursuant to the statutory disclosure requirement exception for "letters of reference concerning employment." § 24-72-204(3)(a), 10B C.R.S. (1988). 1 The Colorado Court of Appeals reversed, holding that the questionnaire forms were not "letters of reference" within the meaning of that statutory exception. City of Westminster v. Dogan Constr. Co., 914 P.2d 455, 458 (Colo.App.1995). We granted certiorari and now reverse the judgment of the court of appeals and remand the case to that court with directions to reinstate the judgment of the district court.

I.

In December of 1993, the City solicited bid proposals for biomonitoring and anaerobic digestion modifications to the Big Dry Creek Wastewater Treatment Plant (Project). HDR Engineering, Inc. (HDR) was employed by the City as project engineer to provide bidding administration assistance, including evaluation of the bids and recommendation of the award. The City received six bids for the Project. Dogan submitted the lowest bid, $4,079,000, underbidding the second lowest bidder by approximately $18,000.

Two of HDR's engineers interviewed the bidding contractors' references by telephone and recorded the results of those interviews on preprinted questionnaire forms. HDR contacted interviewees from lists of references submitted by the bidders, limiting its contacts to references knowledgeable about similar water or wastewater treatment projects the bidders had constructed since 1990. The preprinted questionnaire forms began with the bidder's name, and consisted of sixteen questions or items of information, including such subjects as "timeliness," "contractor/subcontractor relations," and "quality of work." The preprinted questionnaire forms ended with a space for general comments, immediately preceded by two pointed questions, i.e., "[w]ould you recommend this contractor to others[?]," and "[w]ould you use this contractor for similar work again[?]." HDR considered the references' responses to these latter two questions and the "timeliness" question to be the most important aspects of the interviews.

On January 17, 1994, HDR submitted its recommendations to the City. Although Dogan was "[t]he apparent low bidder (based on dollars alone)," HDR recommended that the City award the contract for the Project to the apparent second lowest bidder based on HDR's evaluation of the responses of the project owners and engineers interviewed. Dogan responded by soliciting positive letters of recommendation and submitting those letters to HDR for review. On January 31, 1994, however, after reviewing Dogan's submissions, the City awarded the contract for the Project to the second lowest bidder.

Dogan then requested that the City permit inspection of various documents concerning the contract award process for the Project, including "[a]ll documents and writings relating to the results of the telephone survey." The City allowed Dogan to inspect all of the requested documents except the completed questionnaires resulting from HDR's telephone interviews with the bidders' references. On March 29, 1994, the City informed Dogan that it denied inspection of the questionnaires pursuant to each of three statutory exceptions to the disclosure requirements of the Act, §§ 24-72-201 to -206, 10B C.R.S. (1988 Supp.), for (1) "letters of reference concerning employment," § 24-72-204(3)(a), 10B C.R.S. (1988), (2) trade secrets, privileged information, and confidential commercial data, § 24-72-204(3)(a)(IV), 10B C.R.S. (1988), and (3) public records, disclosure of which "would do substantial injury to the public interest, notwithstanding the fact that said record might otherwise be available to public inspection," § 24-72-204(6), 10B C.R.S. (1988). 2 That same day, the City filed in Adams County District Court an "Application for Order Permitting Public Entity to Restrict Disclosure of Information," pursuant to section 24-72-204(6), 10B C.R.S. (1988). 3 On April 6, 1994, Dogan filed an action in Adams County District Court to compel the City to permit Dogan to inspect the questionnaires. On motion, the trial court consolidated the two cases.

At the City's request, the trial court conducted an in camera inspection of the completed questionnaire forms and held a hearing to determine, as a threshold matter, whether those forms constituted "letters of reference concerning employment," § 24-72-204(3)(a), 10B C.R.S. (1988), for purposes of the Act, and therefore were not subject to inspection by Dogan. At the conclusion of argument on that issue, the court issued its oral ruling that the questionnaires fell within that statutory definition. The court began its ruling by stating that it was "mindful of the declared public policy under the act that all public records shall be open for inspection by any person at a reasonable time except as [statutorily] provided," and of "case law which suggests that the exceptions to disclosure must be read and construed narrowly." The court nevertheless determined that the completed questionnaire forms fell within the statutory disclosure requirement exception for "letters of reference concerning employment," § 24-72-204(3)(a), 10B C.R.S. (1988):

It's my ruling that the term "letters of reference" is a--as used in the statute--is a term used to describe communications or correspondence regarding individuals and the nature of information about an opinion of the qualification or qualifications of the described person.

In this case it's undisputed that the documents constitute a written format of questions to be posed by a telephone interviewer to the persons who were listed by Dogan as Dogan's references in support of its bid for a contract from the City. It is my ruling and finding that these documents do constitute letters of reference. The fact that they are in the nature or form of the interviewer's writing down the verbalized comments of the interviewee is not a point of critical distinction.

What is critical is that in the context which is apparent from the documents reviewed by the Court that the questions were asked in confidence, they were understood to be confidential, they were understood to be private, and the Court fails to perceive any reason to treat these documented interview results any differently than it would a letter issued in response to a request for information.

The second question is whether or not this concerns employment. The Court rules that the term "concerning employment" as used in the statute includes a decision to hire a person, including a corporate person to work for the City. The distinction between an independent contractor and an employee that is made for purposes of determining liability for negligence is not germane to the issue here presented.

It would be my ruling that the statute is clear on its face and to resort to rules of construction of the statute would not be necessary.

The court went on to note, however, that the same result would be reached by employing rules of statutory construction. The court stated:

I will add, however, that resorting to the rules of construction would, in this Court's opinion, achieve the same result.

A primary rule of construction is to determine the intent of the legislature and the policy which the legislature was intending to effectuate by enacting the statute.

The disclosure of information and the nature of personal references given in confidence and in privacy would most certainly be discouraged if the information were not maintained confidentially and private.

....

[T]he public interest is greatly served where a public entity such as a municipal corporation has the ability to obtain open and candid references.

If the public entity were required to disclose these confidential documents, certainly it would impair the public interest to obtain and use this information.

The trial court thus held that both the literal language of section 24-72-204(3)(a), 10B C.R.S. (1988), and the legislative policies underlying that exception to the disclosure requirements of the Act supported the City's decision to withhold the questionnaire forms from disclosure.

Dogan appealed, and the Colorado Court of Appeals reversed in a divided opinion. Dogan, 914 P.2d at 456. The court held that the questionnaire forms did not fall within the exception to the disclosure requirements of the Act for "letters of reference concerning employment," § 24-72-204(3)(a), 10B C.R.S. (1988). Dogan, 914 P.2d at 457-58. The court of appeals held that the forms did not constitute "letters of...

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