Colorado’s second-highest court agreed last month that Moffat County School District was entitled to withhold certain portions of an “organizational health” report commissioned by its school board to investigate areas of concern.

The Moffat County Education Association petitioned under the state’s open records law for access to undisclosed portions of an investigator’s report, prepared alongside the district’s legal counsel. The document came in response to an instance of alleged misconduct, coupled with the board’s concerns about the administration and central office overall.

A trial judge determined the withheld portions were shielded by attorney-client confidentiality and the protection for a governmental body’s deliberative decision-making process. On May 22, a three-judge Court of Appeals panel agreed that conclusion was reasonable.

Some portions of the document incorporate legal advice, wrote Judge Christina F. Gomez, and “other portions of the report — including those summarizing the investigative findings from employee interviews — properly fall within the scope of the deliberative process privilege.”

The teacher union sought access to the “Quimby Report,” prepared by investigator Jane Quimby after an incident in mid-2022 where a district administrator took home discarded windows from a school building potentially without authorization. The board of education asked the district’s attorney, David Price, to look into the alleged misconduct and also to investigate the “organizational health” of the administration.

Price signed an agreement with Quimby, who would provide her findings and conclusions about any inappropriate behavior. Quimby interviewed several current and former district employees, who were told their statements would remain confidential.

In response to a records request from the union, the board provided Quimby’s factual findings and the executive summary in July 2023. However, it withheld the remaining sections of the document. The union then filed suit, arguing Price was involved in an investigative capacity, not a legal capacity, meaning attorney-client confidentiality did not apply. Further, the report did not implicate protected deliberations by the elected school board.

After examining the document and taking testimony, Chief Judge Brittany A. Schneider rejected the union’s request for disclosure. 

“The undisclosed section of the Report contains more than simply factual assertions. It contains a combination of facts, opinions, and recommendations based on the interview process completed by Ms. Quimby at the direction of Mr. Price,” she wrote in a May 2024 order. The withheld content was meant to “synthesize recommendations to make to the Board. Those recommendations come in the form of legal advice. Therefore, the remainder of the report is protected under the attorney-client privilege.”

Schneider also found the report was intended to assist with the board’s decision-making, and the board president testified she would be reluctant to request similar investigations in the future if the contents would be disclosed publicly.

The “statements contained in the Report and made by employees are quite candid and personal, and given the nature and size of the community, the concern that employees could be identified by their comments is a concern,” Schneider continued. “Of even greater concern is the fact that these people contributed their frank and honest opinions for the report with the promise of anonymity. Based on the promises made and the contents of the report, the disclosure of the Report would have a chilling effect on future honest and frank communications.”

On appeal, the union contended Quimby’s investigation was largely divorced from legal advice, eliminating the shield under the Colorado Open Records Act.

“I believe objectively that it was just an investigation done by someone on behalf of the attorney. And if that is the case, I think CORA allows us to basically slice that part of the legal advice off of the report’s portions that are, in fact, factual in nature,” said attorney Euell Thomas during oral arguments.

The district’s lawyer countered the Quimby Report was intended to help the board “better understand” the issues facing it, including legal issues.

“To require disclosure of the final remaining portions would severely limit a governmental body’s ability to conduct a frank and thorough investigation,” argued Drew Kraniak. “It’s essential for a governmental body to be able to look inward, self-evaluate and make informed decisions.”

The appellate panel agreed Schneider acted reasonably in siding with the district, noting Price had contributed legal advice within the undisclosed sections. Moreover, the portions containing the opinions of current and former employees were intended to inform the board’s decision-making. Finally, the panel agreed the board had an interest in preserving confidentiality to encourage candid reporting in the future.

The case is Moffat County Education Association v. Moffat County School District RE-1 et al.