The University of Colorado is not obligated to publicly release the names of six candidates the board of regents interviewed during its 2019 search for a new president, a divided panel of the Court of Appeals ruled on Thursday.
In reaching its decision, the three-member panel’s majority found a lower court judge reinterpreted Colorado’s open records law to mean the CU Board of Regents had a duty to disclose the applications of the people who came before the board at the final stage of the process. In determining the six people were “finalists,” however, the lower court exceeded the legislature’s definition of the term.
Who qualifies as a finalist, wrote Judge Michael H. Berger in the majority opinion, “reflects a policy decision that is for the General Assembly, not the courts.”
Jeffrey A. Roberts, executive director of the Colorado Freedom of Information Coalition, called the ruling a blow to open government.
"There are reasons why the statute was interpreted to be on the side of more transparency, not less, and that's to make sure that when a university president or a school superintendent is selected, the public gets an opportunity to see who was under serious consideration, and that there was a diverse pool of applicants," Roberts said.
The board of regents hired Mark R. Kennedy as the university’s president in 2019, following the retirement of Bruce Benson. In its search, the board hired an outside firm that received more than 100 referrals or applications. After initial screening and interviews, the search committee settled on six applicants whom the regents interviewed.
Kennedy, however, was the only finalist the board announced publicly. By a 5-4 vote along partisan lines, the Republican-controlled board appointed Kennedy.
The Daily Camera filed an open records request for the names and applications of the six semifinalists. The university refused to provide any materials, except for Kennedy’s.
“We attempted to negotiate through our attorneys with the administration and the regents to have them do the right thing and release information on all the finalists for the university president,” the paper's publisher, Al Manzi, said at the time. “The regents determined they would not offer any transparency.
In 2019, The Colorado Independent obtained a list of 30 candidates who were under consideration, including prominent state leaders such as former Gov. Bill Ritter and former Lt. Gov. Donna Lynne. Kennedy, a Republican former congressman from Minnesota, was at the time president of the University of North Dakota, with a student population 4.5 times smaller than CU’s.
Regent Heidi Ganahl, a Republican, defended the university's handling of the presidential search, telling Colorado Politics that the board "promised these women and men a confidential and professional search. We had both until someone breached the trust of our committee and of these candidates."
The Daily Camera had already filed a lawsuit to force CU to disclose the records, as the Colorado Open Records Act only requires information to be released of finalists for executive positions. The appellate panel noted the definition of “finalist” describes those who are in the final group of applicants that is “made public.” That definition, wrote Berger, was “confusing and perhaps circular.”
Denver District Court Judge A. Bruce Jones initially sided with the newspaper, finding a process that only allowed the board to disclose a single person violated the principles of the open records and open meetings laws.
“We fully acknowledge that, as written and as we apply the statutes, both CORA and the [Open Meeting Law] are subject to abuse by appointing entities because they can structure their appointment process to limit applicant disclosure to only one finalist," Berger acknowledged. “Many will argue, more than plausibly, that such a structure is inimical to principles of open government. And they might be right.”
Nevertheless, the majority reversed Jones’ decision, saying the General Assembly was responsible for changing the law to prevent institutions from violating the spirit of transparency.
Judge Jerry N. Jones dissented, arguing that the law envisions there will always be more than one finalist when there are multiple applicants for a position.
The majority’s interpretation, Jones wrote, “allows each appointing entity unfettered power to determine who is a finalist. Different appointing entities can take different approaches and can manipulate their procedures to shield information from disclosure.”
Jones, the appellate judge, also called on the General Assembly to change the law and clarify the mandatory disclosure of finalists.
Colorado Politics and its sibling publication, The Gazette, were among the media organizations that filed a brief in support of The Daily Camera.
Currently, there is a bill before the legislature that would reinforce, rather than prevent, the ability of public bodies to name lone finalists. House Bill 1051 by Reps. Tim Geitner, R-Colorado Springs, and Shannon Bird, D-Westminster, would give institutions the discretion to make public the "finalist or finalists."
Melanie Knapp, a Colorado Springs parent who sued a local school district to obtain a list of superintendent finalists, told the Colorado Freedom of Information Coalition that the bill “completely violates the spirit of openness in government. I can’t believe this is even a possibility.”
Kennedy's selection to lead CU was initially controversial in the university community, and prompted Kennedy to explain how his views "evolved" on LGBTQ rights since his tenure in Congress.
The university and attorneys for the paper did not immediately respond to a request for comment.
The case is Prairie Mountain Publishing Co. v. Regents of the University of Colorado.