Freedom Newspapers, Inc. v. Tollefson, 97CA0792

• Decision Date: 09 July 1998
• Docket Number: No. 97CA0792,97CA0792
• Citation: 961 P.2d 1150
• Parties: 26 Media L. Rep. 2132, 98 CJ C.A.R. 3724 FREEDOM NEWSPAPERS, INC., d/b/a Colorado Springs Gazette Telegraph and Pam Zubeck, Plaintiffs-Appellees, v. Phillip H. TOLLEFSON, Director of Utilities for Colorado Springs and Ann E. Nichols, Director of Finance and Management Services for Colorado Springs Utilities, Defendants-Appellants. . V
• Court: Colorado Court of Appeals

Page 1150

961 P.2d 1150

26 Media L. Rep. 2132, 98 CJ C.A.R. 3724

FREEDOM NEWSPAPERS, INC., d/b/a Colorado Springs Gazette

Telegraph and Pam Zubeck, Plaintiffs-Appellees, v. Phillip H. TOLLEFSON, Director of Utilities for Colorado

Springs and Ann E. Nichols, Director of Finance

and Management Services for Colorado

Springs Utilities,

Defendants-Appellants.

No. 97CA0792.

Colorado Court of Appeals, Div. V.

July 9, 1998.

Faegre & Benson, L.L.P., Thomas B. Kelley and Steven D. Zansberg, Denver, for Plaintiffs-Appellees.

James G. Colvin, II, City Attorney, El Paso City Attorney's Office, Colorado Springs, for Defendants-Appellants.

Patricia K. Kelly, Senior Utilities Attorney, Shane M. White, Senior Litigation Attorney Office of the City Attorney, Colorado Springs, for Defendants-Appellants.

Opinion by Judge TAUBMAN.

Defendants, Phillip H. Tollefson and Ann E. Nichols (custodians), appeal from the summary judgment entered against defendants and in favor of plaintiffs, Freedom Newspapers, Inc., d/b/a Colorado Springs Gazette Telegraph, and Pam Zubeck, ordering the release of certain records pursuant to the Colorado Open Records Act (ORA), 24-72-201, et seq., C.R.S.1997. We affirm.

The City of Colorado Springs owns and operates Colorado Springs Utilities (CSU). Tollefson is its director and Nichols is its director of finance and management services. In 1995, the City implemented the Transitional Employment Program (TEP) as part of a new organizational structure designed to help CSU succeed in the face of industry competition. TEP provided an opportunity for employees of CSU whose positions had been identified as "surplus" to retire early and receive severance payments and benefits. The program was extended in 1996 to those employees who were either unable or unwilling to make significant changes in their working style as deemed necessary for CSU's transition into the competitive environment.

Plaintiffs requested the opportunity to inspect and copy all records reflecting the amount of payments made pursuant to TEP. Custodians provided plaintiffs information as to the number of former employees who had received payments through TEP, the total amounts paid, the total benefit payments, and the number of months for which payment was provided to each TEP participant. However, they refused to release the names of TEP participants and the individual amounts paid to them, claiming that such information was statutorily exempted from disclosure under ORA.

Following that refusal, plaintiffs initiated this action, and, on motion for summary judgment, the trial court ruled as a matter of law that custodians had to release the TEP records at issue here. Its decision was stayed pending this appeal.

Summary judgment is a drastic remedy and should be granted only upon a clear showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). Review of a judgment granting a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

I. Personnel Files

Custodians first contend that the trial court erred as a matter of law in concluding that the names of TEP participants and the individual amounts paid to them were not exempt from disclosure under ORA. More specifically, custodians contend that such information is not disclosable because it falls within the exception for information contained in employee "personnel files." We disagree.

A. Colorado Open Records Act

A court's primary task in construing a statute is to give effect to the intent of the General Assembly. Thus, courts should interpret statutory terms in accordance with their plain and ordinary meaning. Thurman v. Tafoya, 895 P.2d 1050 (Colo.1995). Additionally, statutes must be construed as a whole. Therefore, when interpreting a statute, we must give consistent, harmonious, and sensible effect to all of its parts. A construction that leads to an absurd result will not be followed. City of Grand Junction v. Sisneros, 957 P.2d 1026 (Colo.1998).

Likewise, the rule of consistent usage requires that, when the General Assembly uses the same words or phrases in different parts of a statute, then, in the absence of any manifest indication to the contrary, the meaning attributed to the words or phrases in one part of the statute should be ascribed to the same words or phrases found elsewhere in the statute. Colorado Common Cause v. Meyer, 758 P.2d 153 (Colo.1988).

ORA contains a broad legislative declaration that all public records shall be open for inspection unless excepted by the statute itself or specifically by other law. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). Exceptions to ORA should be narrowly construed. However, a court must uphold a record custodian's denial of inspection of documents from an employee's personnel file, unless the denial was arbitrary and capricious. Denver Post Corp. v. University of Colorado, 739 P.2d 874 (Colo.App.1987).

Section 24-72-204(3)(a)(II)(A), C.R.S.1997, exempts from disclosure information contained in "personnel files." Further, the statute provides in pertinent part that:

'Personnel files' means and includes home addresses, telephone numbers, financial information, and other information maintained because of the employer-employee relationship, and other documents specifically exempt from disclosure under this part 2 or any other provision of law.

Section 24-72-202(4.5), C.R.S.1997.

In addition, § 24-72-202(4.5) provides that:

'Personnel files' does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports ... or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions.

The word "includes" is generally used as a term of extension or enlargement when used in a statutory definition. See Colorado Common Cause v. Meyer, supra. Similarly, "any" is a term of expansion without restriction or limitation. See Obert v. Colorado Department of Social Services, 766 P.2d 1186 (Colo.1989).

The plain language of the statute, as quoted above, exempts from the definition of personnel files "any amount paid or benefit provided incident to termination of employment." Thus, by its plain language, severance payments received pursuant to TEP are not part of an employee's personnel file and, therefore, are subject to disclosure.

Custodians argue, notwithstanding the above, that the word "names" is not referred to in that part of the statute and that the plain language of the statute does not require disclosure of the names of employees participating in TEP. They interpret the phrase "does not include," in the above-quoted language, as a phrase of limitation. Thus, they read that portion of the statute to exclude from the definition of "personnel files" only those items expressly mentioned.

Conversely, custodians interpret the word "includes" in the definition of "personnel files" as a term of enlargement and, therefore, read that portion of the definition as encompassing something more than those terms expressly mentioned. According to custodians' construction, the name of a public employee, an item contained in a personnel file but not expressly mentioned within the statute, is included in the definition of "personnel files." Accordingly, custodians argue that the names of TEP participants are exempt from disclosure pursuant to § 24-72-204(3)(a)(III)(A) and § 24-72-202(4.5). Consistent therewith, custodians maintain that release of the aggregate information previously provided to plaintiffs is sufficient to comply with the requirements of ORA. More specific information, custodians argue, would reveal the identities of the TEP participants and, therefore, violate ORA. We disagree.

We conclude that custodians cannot avoid the disclosure requirement contained in §§ 24-72-204(3)(a)(II)(A) and 24-72-202(4.5) merely by releasing to plaintiffs the total amounts paid to employees pursuant to TEP. Such a reading is inconsistent with the plain language of the statute. See Obert v. Colorado Department of Social Services, supra.

Further, contrary to custodians' contention, there is no basis for construing the term "include," when phrased in the negative, differently from the term when used otherwise. See Colorado Common Cause v. Meyer, supra.

A construction which gives all terms of the statute consistent, harmonious, and sensible effect requires that the public entity disclose any amount paid incident to termination of public employment, regardless of whether such information would reveal the employee's identity. Accordingly, we do not read the statute to exempt from disclosure an employee's name simply because it is an item of information contained in a personnel file. See Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo.App.1990) (unreasonable for public institution to restrict access to information by merely placing documents in personnel file; a legitimate expectation of privacy must be present).

This construction is consistent with Denver Post Corp. v. University of Colorado, in that it narrowly construes an exception to ORA.

Thus, we conclude, as did the trial court, that the names of TEP participants are subject to disclosure under ORA.

B. Freedom of Information Act

Relying on Denver Post Corp. v. University of Colorado, supra, custodians similarly argue that because the drafters of ORA studied and quoted from the federal Freedom of Information Act (FOIA) in their report to the General Assembly, we should, in construing ORA, look to federal law interpreting analogous provisions of FOIA. Further, custodians argue that, pursuant to Denver Post Corp., anything contained in...