Disciplinary records for public school administrators are not subject to disclosure thanks to a law shielding materials used in preparing educator evaluations, Colorado’s second-highest court ruled on Thursday.

A three-judge panel for the Court of Appeals noted administrators’ disciplinary histories are factors in their evaluations, thereby landing within an exception to the state’s open records law. Although the plaintiff, The Denver Gazette newspaper, argued withholding misconduct details ran counter to the public’s interest, the panel believed lawmakers had “unequivocally” barred the release of such information.

“If the Gazette believes (the law) prevents members of the public from accessing an excessive number of documents that are matters of public interest, its remedy lies in the legislative, not the judicial, branch of our state government,” wrote Judge Lino S. Lipinsky de Orlov in the Nov. 27 opinion.

“By lumping discipline records and teacher evaluations together, the court dodged a decision on whether releasing schools discipline decisions is in the public interest, which we absolutely feel it is,” said Vince Bzdek, executive editor of the Gazette newspapers. “This ruling keeps parents in the dark on whether or not the teachers and principals educating their children have been found guilty of misconduct.” 

Earlier this year, legislators expanded the categories of school personnel whose evaluation reports and related materials would remain confidential, even as one of the bill sponsors maintained “a disciplinary record is not the same thing as an evaluation framework.”

“But now, with this court decision, those records will be off-limits to the public,” said Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition. “This is a disappointing decision that will make it much more difficult to shine a light on public school administrators who are accused of misconduct.”

In the underlying case, David Migoya, a senior investigative reporter at The Denver Gazette, sent an open records request to Denver Public Schools seeking disciplinary documentation for school administrators. (Colorado Politics and The Denver Gazette are owned by the same parent company, Clarity Media Group.)

Although DPS appeared willing to fulfill the request at first, it eventually reversed course. The records custodian informed Migoya the information was not subject to disclosure under the “personnel file exemption” and because of “public policy favoring privacy, efficient operation of schools.”

Migoya and The Denver Gazette then filed a complaint in Denver District Court seeking to compel disclosure. Initially, Judge Marie Avery Moses agreed DPS could not cite the exception for personnel files to justify withholding records. However, she found a “somewhat unusual” provision of state law clearly prohibited the release of any records involving investigations of sexual harassment.

While allowing for the withholding of those records, Moses also gave DPS the opportunity to argue it should be permitted to shield the remaining disciplinary files based on a “substantial injury to the public interest.”

At a hearing, the school district and the union representing administrators — the Denver School Leaders Association — presented witnesses who described an understanding within DPS that performance evaluations and all materials used to prepare those evaluations would remain confidential. Moses also heard that making disciplinary records public would affect recruitment of principals and cause a loss of trust in school leaders.

She ultimately sided with the district, noting the plaintiffs presented no evidence countering the alleged negative effects of making all disciplinary materials public, no matter the magnitude of the infraction.

“While there may be an obvious public interest in disclosure of disciplinary records related to egregious conduct, there is no obvious public interest in disclosure of corrective action related to minor disciplinary matters such as failing to properly secure an AV cart or failure to greet families at the front of the school at the start of each school day,” Moses wrote. “Without any testimony or evidence regarding the public’s interest in accessing all such final disciplinary decisions, the Court cannot find that there is a compelling public interest in the vast category of documents sought by Plaintiffs.”

The plaintiffs turned to the Court of Appeals, arguing the legislature did not intend to broadly bar disclosure of administrators’ misconduct.

“DPS principals and administrators are entrusted with the care of children and are the individuals that students have the most regular contact with,” wrote attorney Rachael Johnson. “As such, the gravity of their actions and the public’s interest in information relating to their performance is well-established.”

However, during oral arguments to the Court of Appeals panel, Lipinsky immediately raised the portion of the Colorado Licensed Personnel Performance Evaluation Act (CLPPEA) shielding records used in performance evaluations. He suggested the panel need not engage with Moses’ conclusions about the public interest, so long as the CLPPEA prohibition existed.

At the same time, Lipinsky acknowledged the broad exemption for performance evaluations could be problematic.

“Let’s say DPS didn’t want a menu from a high school to be made public. They then use it as a part of the evaluation process to develop an evaluation report. Would that menu, then, be protected as confidential?” he wondered.

“I think that if the statute is interpreted literally, then yes, a menu would,” conceded attorney Joseph M. Goldhammer for the Denver School Leaders Association.

Ultimately, the panel concluded the confidentiality requirement for evaluation materials applied to Migoya’s records request. It did not address Moses’ analysis weighing the public’s interest in principals’ disciplinary files.

The case is Migoya v. Wheeler.

Editor’s note: This story has been updated with additional comments.