A Colorado Springs-based school district is not obligated to disclose additional candidate applications and closed-door session recordings from its 2019 search for a new superintendent, Colorado’s second-highest court has ruled.

On Thursday, a three-judge panel for the Court of Appeals interpreted the state’s open records and open meetings laws to mean Academy District 20 could decide for itself who qualified as a superintendent “finalist.” Consequently, the district was within its rights to only name one finalist and to release records of that person alone.

The practice of designating sole finalists for executive positions has been a heated topic in the past few years. When the University of Colorado announced only one finalist for the presidency in 2019 after receiving dozens of applications, The Daily Camera sued for the names and applications of those who had received an interview with the board of regents.

But in a March 2021 decision, the Court of Appeals decided by 2-1 that the definition of a finalist was whoever the board designated as a finalist – and by law, only the applications of finalists may be disclosed.

“Many will argue, more than plausibly, that such a structure is inimical to principles of open government. And they might be right,” acknowledged Judge Michael H. Berger in Prairie Mountain Publishing Co. v. Regents of the University of Colorado.

Within months, however, the General Assembly doubled down on the ruling, passing a bipartisan bill expressly allowing for public entities to name a single finalist whose information is subject to disclosure. Although several news organizations and the Colorado Freedom of Information Coalition asked Gov. Jared Polis to veto the bill, he allowed it to become law without his signature while recognizing the tension between the privacy interests of applicants and the public’s interest in transparency.

Amid a decades-long trend in Colorado favoring less transparency and greater confidentiality, Melanie Knapp filed suit in El Paso County to obtain the names and application materials of the people she viewed as finalists in Academy District 20’s superintendent search. She also requested the recordings of closed-door executive sessions where the school board discussed the finalists.

Initially, 26 qualified people applied to be superintendent and a search firm worked to winnow the number to five. The board interviewed those candidates and eventually named Kimberly Hough as its sole finalist. However, Hough withdrew her name and the board again interviewed five people. It selected J. Thomas Gregory as the new sole finalist in May 2019.

District Court Judge Thomas K. Kane, interpreting the meaning of “finalist,” decided the five people who received interviews qualified under that definition, and not just Gregory.

“From the information produced by the Board, the final round of interviews was the last point at which there was meaningful competition among the candidates,” Kane wrote in a June 2020 order.

He directed the district to disclose the names and applications of the five finalists, as well as any recordings or transcripts of the executive session meetings after the selection of the five finalists.

Academy District 20 appealed, arguing the legislature had given school districts discretion to decide who is a finalist. It outlined the General Assembly’s repeated modifications to the law, beginning in 1994, that gradually restricted the information the public is entitled to receive.

The Colorado Association of School Boards submitted a brief in support of the district, noting there were 18 superintendent searches statewide during the 2020-2021 school year that would be affected by the ruling.

“The District Court did not address or define ‘meaningful competition’ – a phrase that does not appear” in the law, wrote attorney Samantha Jones-Rogers, predicting dire consequences if school districts were not allowed to decide which applications to keep confidential.

Although the Court of Appeals panel that considered Knapp’s lawsuit was not bound by the Prairie Mountain decision, the judges nevertheless drew comparisons to CU’s presidential search.

“Is there a factual distinction to be made? Because in the case we’re considering, the board announced publicly there were five candidates that they narrowed down,” observed Judge Neeti Vasant Pawar.

“The board never named those five individuals as finalists,” countered Catherine A. Tallerico, the lawyer for the school district. Allowing trial courts to determine who is a finalist after the fact, she added, is “a very litigious way of hiring a chief executive officer.”

Eric Maxfield, representing Knapp, downplayed the risk of other lawsuits, especially given the recent change in law. 

“Under this statute, as it was in 2019, it permitted citizens and persons such as Ms. Knapp to view an assortment of candidates,” he said, “and to judge their relative qualifications and to provide feedback to elected officials. It also allowed people like Ms. Knapp to determine the quality of the decision making by the board so she and they could hold elected officials accountable.”

Ultimately, the appellate panel fell in line with the Prairie Mountain decision. It was permissible for the district to only release the information for Gregory, the sole finalist, wrote Pawar in the Oct. 13 opinion.

“Knapp argues this interpretation is tantamount to defining a finalist as someone who the Board says is a finalist,” she elaborated. “We conclude that is precisely what the plain language of the statute requires and serves to strike the balance between public transparency and the need for confidentiality.”

Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition, was disappointed in the ruling.

“Shrouding the hiring process in secrecy means communities have no way of knowing whether a diverse and well-qualified range of candidates received serious consideration or whether a hiring decision was pre-ordained,” he said.

The case is Knapp v. Board of Education Academy District 20.