Denver Post Corp. v. University of Colorado, 86CA0331
| Decision Date | 05 March 1987 |
| Docket Number | No. 86CA0331,86CA0331 |
| Citation | 739 P.2d 874 |
| Parties | 40 Ed. Law Rep. 1269, 13 Media L. Rep. 2300 The DENVER POST CORPORATION, and Neil Westergaard, Plaintiffs-Appellees and Cross-Appellants, v. The UNIVERSITY OF COLORADO, the Regents of the University of Colorado, C. William Fischer and H.H. Arnold, Defendants-Appellants and Cross-Appellees. . II |
| Court | Colorado Court of Appeals |
Gibson, Dunn & Crutcher, George B. Curtis, David Schieferstein, Denver, for plaintiffs-appellees, cross-appellants.
Office of the University Counsel, University of Colorado, Ted D. Ayres, Ben A. Rich, Kathleen Mills, Rosemary Augustine, Boulder, for defendants-appellants and cross-appellees.
The University of Colorado appeals an order of the district court allowing the Denver Post to inspect certain University documents. The Post cross-appeals, asserting that the court erred by sustaining the University's refusal to allow inspection of other documents on the basis of the attorney-client privilege and the work product doctrine, and in denying its request for attorney fees and court costs. We affirm in part, and reverse in part.
Pursuant to the Colorado Open Records Act, § 24-72-201 et seq., C.R.S., a reporter for the Post submitted a written request to the University of Colorado seeking access to certain documents. These documents related to an internal investigation conducted by a special review committee appointed by the president of the University. The committee had investigated allegations raised by the state auditor that certain regents and certain administrators, faculty, and employees of the University's Health Sciences Center had received, in connection with University contracts to establish a hospital and medical school in Saudi Arabia, payments from that government which may have been unauthorized and improperly reported.
The University released some documents to the Post, but withheld others, claiming they were exempt from disclosure under the Open Records Act. The Post then filed an application in the district court under § 24-72-204(5), C.R.S., for an order directing the University to show cause why inspection of this information was denied, and to pay the Post's attorney fees and costs if the court found the denial arbitrary or capricious. Thereafter, the trial court entered the order here at issue.
The Colorado Open Records Act contains a broad legislative declaration that all public records shall be open for inspection unless specifically excepted by law. Section 24-72-201, C.R.S. Consonant with that policy mandate, it was held in Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974) that a public official has no authority to deny any person access to public records unless there is a specific statute permitting the withholding of the information requested.
The University denied access to the documents on the basis of several provisions of § 24-72-204, C.R.S. This section provides in pertinent part:
"(1) The custodian of any public records shall allow any person the right of inspection of such records ... except on one or more of the following grounds or as provided in subsection (2) or (3) of this section:
(a) Such inspection would be contrary to any state statute.
....
(c) Such inspection is prohibited by rules promulgated by the supreme court or by the order of any court.
....
(3)(a) The custodian shall deny the right of inspection of the following records, unless otherwise provided by law....
....
(II) Personnel files, except applications and performance ratings....
....
(IV) ... privileged information ...
....
(6) If, in the opinion of the official custodian of any public record, disclosure of the contents of said record would do substantial injury to the public interest, notwithstanding the fact that said record might otherwise be available to public inspection, he may apply to the district court ... for an order permitting him to restrict such disclosure...." (emphasis added)
For each of the documents, the University asserted the applicability of one or more of these exceptions, arguing specifically that the documents were in the nature of personnel files, were protected by the attorney-client privilege and its associated work product doctrine, and that disclosure would do substantial injury to the public interest.
The trial court ordered the University to release sixty-one of the seventy-seven documents in question, finding that, of the statutory exemptions relied upon by the University in denying inspection of the documents, only the attorney-client privilege and work product doctrine were properly applied, and that they protected only sixteen of the documents. The court denied the Post's request for attorney fees and costs, concluding that the University's denial of inspection, though incorrect, was not arbitrary or capricious.
In its appeal, the University contends that all the documents are protected from disclosure under the Act. In its cross-appeal, the Post seeks access to all the documents and a reversal of the finding which led to the denial of attorney fees and court costs. All documents were ordered sealed by the trial court and remain so pending final resolution of the case.
The trial court held that the statutory exception for personnel files, § 24-72-204(3)(a)(II), C.R.S., applies only to documents which actually are present in an employee's personnel file. Consequently, since no documents at issue here came from such a file, it ruled the University had no right to deny inspection on that basis.
The legislative history of the Colorado Open Records Act indicates a concern for protecting the individual's constitutionally based right to privacy while providing for access to public records. Colorado Legislative Council, Research Publ. # 126, Open Public Records for Colorado at xvii, 3 (1967). This concern is the basis of the statutory exception for personnel files.
We conclude that the statutory scheme and language of the Open Records Act require the interpretation that § 24-72-204(3)(a)(II) applies only to documents which actually are present in an employee's personnel file. Section 24-72-204(2) lists types of records as to which a custodian of public records may deny inspection on the ground that disclosure would be contrary to the public interest. Section 24-72-204(3), however, provides for mandatory denial of the types of records specified therein, unless otherwise provided by law. Thus, while subsection (2) allows for the exercise of some discretion by the custodian, subsection (3) does not.
A comparison with the analogous section of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(6), emphasizes the point. The drafters of Colorado's Open Records Act studied the federal act and quoted this section in their report to the General Assembly. Exemption 6 of the federal act exempts from mandatory disclosure "personnel and medical and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), the phrase "a clearly unwarranted invasion of personal privacy" was held to modify not only "similar files," but also personnel and medical files. We hold that by omitting any such modifying language in subsection § 24-72-204(3)(a)(II), the General Assembly intended a blanket protection for all personnel files (except applications and performance ratings, for which the Assembly presumably found an overriding public interest in disclosure) and did not grant the custodian discretion to balance the interest in disclosure with the individual's right of privacy.
Although § 24-72-204(3)(a)(II) does not authorize any balancing of the public interest and the right of privacy by the custodian, the protection for personnel files is based on a concern for the individual's right of privacy, and it remains the duty of the courts to ensure that documents as to which this protection is claimed actually do in fact implicate this right. As we read the statute, where documents are sought from an employee's personnel file, §§ 24-72-204(3)(a)(11) and 24-72-204(5) require the applicant to bear the burden of proving that the custodian's denial of inspection was arbitrary and capricious.
As to documents which are not present in an employee's personnel file but which involve privacy rights, we agree with the trial court's finding that the custodian of the documents bears the burden of proving, under § 24-72-204(6), that disclosure would do substantial injury to the public interest by invading the constitutional right to privacy of the individuals involved. We review the court's findings under § 24-72-204(6) in the following section.
The University contends that, in considering the University's allegations of substantial injury to the public interest under § 24-72-204(6), C.R.S., the trial court failed to give proper weight to the public interest in protecting the privacy rights of individuals named in the documents and the public interest in encouraging internal review, investigation, and correction by government without undue interference.
In Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980), the supreme court applied a tripartite balancing inquiry to the issue of privacy rights in the context of the civil discovery rules. In the public records context, this inquiry requires consideration of (1) whether the individual has a legitimate expectation of nondisclosure; (2) whether there is a compelling public interest in access to the information; and (3), where the public interest compels disclosure of otherwise protected information, how disclosure may occur in a manner least intrusive with respect to the individual's right of privacy.
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