Migoya v. Wheeler

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 27, 2024

2024COA124

No. 23CA0995, Migoya v. Wheeler — Government — Colorado
Open Records Act — Exceptions; Education — Licensed
Personnel Performance Evaluation Act

The Colorado Open Records Act (CORA) provides that “[a]ll

public records shall be open for inspection by any person at

reasonable times, except as provided [in the exceptions set forth in

CORA] or as otherwise provided by law.” § 24-72-203(1)(a), C.R.S.

2024. A division of the court of appeals holds, as a matter of first

impression, that a statute outside CORA — section 22-9-109,

C.R.S. 2024, of the Colorado Licensed Personnel Performance

Evaluation Act (CLPPEA) — carves out a further exception to CORA

for the evaluation reports of school districts’ licensed personnel and

the public records used in preparing those reports. Concluding

that the requested disciplinary records of school administrators

were not subject to disclosure under CLPPEA, the division affirms,
albeit on grounds other than those underlying the district court’s

decision.
COLORADO COURT OF APPEALS 2024COA124

Court of Appeals No. 23CA0995
City and County of Denver District Court No. 22CV32315
Honorable Marie Avery Moses, Judge

David Migoya and Denver Gazette,

Plaintiffs-Appellants,

v.

Stacy Wheeler, in her official capacity as custodian of records, and Denver
Public Schools,

Defendants-Appellees,

and

Denver School Leaders Association,

Intervenor-Appellee.

ORDER AFFIRMED

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Hawthorne*, JJ., concur

Announced November 27, 2024

Rachael Johnson, Denver, Colorado, for Plaintiffs-Appellants

Semple, Farrington, Everall & Case, P.C., Jonathan P. Fero, M. Brent Case,
Denver, Colorado, for Defendants-Appellees

Rosenblatt, Gosch & Reinken, PLLC, Joseph M. Goldhammer, William R.
Reinken, Greenwood Village, Colorado, for Intervenor-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 The Colorado Open Records Act (CORA), §§ 24-72-200.1 to

-205.5, C.R.S. 2024, rests on the principle that members of the

public have the right to know about their public officials’ conduct.

See Legis. Council, Colo. Gen. Assembly, Open Public Records for

Colorado, Rsch. Publ’n No. 126, at xi-xii, para. 5 (1967).

“[E]xcessive government secrecy, especially when imposed

arbitrarily by elected or administrative officials, can endanger the

freedom of speech concept embodied in the first amendment and

may threaten democracy generally.” Id. at xi, para. 1. The General

Assembly enacted CORA following the release of the Legislative

Council’s report on open public records, which noted Colorado’s

need for such a statute.

¶2 The touchstone of CORA is that “[a]ll public records shall be

open for inspection by any person at reasonable times, except as

provided [in the exceptions set forth in CORA] or as otherwise

provided by law.” § 24-72-203(1)(a), C.R.S. 2024. CORA defines

“[p]ublic records” as “all writings made, maintained, or kept by the

state, any agency, institution, a nonprofit corporation . . . , or

political subdivision of the state.” § 24-72-202(6)(a)(I), C.R.S. 2024.

1
¶3 But CORA is far from limitless. Nineteen discrete exceptions

appear in the statute itself. See § 24-72-204(3)(a)(I)-(XXIII), C.R.S.

2024. An additional catch-all exception applies when, “in the

opinion of the official custodian” of a requested public record,

“disclosure of the contents of [the] record would do substantial

injury to the public interest.” § 24-72-204(6)(a).

¶4 In this case, we consider whether a statute outside the

confines of CORA — section 22-9-109, C.R.S. 2024, of the Colorado

Licensed Personnel Performance Evaluation Act (CLPPEA) — carves

out a further exception to CORA for the evaluation reports of school

districts’ licensed personnel, as well as the public records used in

preparing those reports. See § 22-9-109(1) (“Notwithstanding

section 24-72-204(3), an evaluation report and all public records, as

defined in section 24-72-202, that are used in preparing the

evaluation report are confidential . . . .”).

¶5 Plaintiffs, David Migoya and the Denver Gazette (jointly, the

Gazette), submitted a CORA request to the records custodian of

Denver Public Schools (DPS) for the disciplinary records of all DPS

administrators (the subject records) created during the 2021

calendar year. DPS denied the Gazette’s request, and the district

2
court upheld the denial. The Gazette appeals the court’s order

concluding that it is not entitled to inspect the subject records. We

affirm, albeit on grounds different from those underlying the court’s

decision.

I. Background Facts and Procedural History

¶6 On January 6, 2022, Migoya, a reporter for the Denver Gazette

newspaper, submitted a CORA request to Stacy Wheeler, in her

capacity as DPS’s custodian of records, for “any final summary

memos (FRISK) of disciplinary action — including but not limited to

letters of wrongdoing, memos to file, letters of placement on leave,

suspension, and/or termination — against any [DPS] administrator,

to include assistant principals, principals, and any

director/administrator above those positions, for the 2021 Calendar

Year.” (“FRISK” refers to DPS’s human resources standards for how

letters of warning, letters of reprimand, and letters regarding

suspension without pay are written.)

¶7 Although, on January 15, 2022, Wheeler informed the Gazette

that DPS would grant its request, fifteen days later, she said that

DPS had reversed its position and would not grant the Gazette

access to the subject records because they fall within the

3
“personnel file exemption” of CORA, section 24-72-204(3)(a)(II)(A),

and in light of the “public policy favoring privacy [and] efficient

operation of schools.”

¶8 In an email to Wheeler dated January 26, 2022, Migoya

asserted that CORA’s personnel files exception “is wholly

inapplicable to the [subject] records,” and further, the “public policy

favoring privacy [or] efficient operation of schools” is not grounds for

refusing to disclose records under CORA.

¶9 In a response dated January 31, 2022, Wheeler said that

“CORA prohibits [DPS] from disclosing certain records, including

‘personnel files.’” Wheeler added that “CORA allows [DPS] to

withhold ‘records otherwise deemed open and subject to disclosure

and release’ if [DPS] has a good faith belief that ‘such release would

do substantial injury to the public interest.’”

¶ 10 The Gazette put DPS on notice that it would file an application

for an order to show cause under section 24-72-204(5)(a). It

subsequently filed a complaint, together with an application, in the

court. The Denver School Leaders Association (DSLA) filed a motion

to intervene, which the court granted over the Gazette’s objection.

(DSLA is “a labor organization with exclusive collective bargaining

4
representation rights for various classifications of school leaders” in

DPS.)

¶ 11 The court determined that the subject records are not exempt

from disclosure under CORA’s personnel files exception. But the

court also found that DPS had reserved its right to argue that

public disclosure of the subject records “would do substantial

injury to the public interest.” (If a court orders that records

requested under CORA should be open to public inspection, “the

official custodian of public records may then apply to the district

court to restrict disclosure if such disclosure would do substantial

injury to the public interest.” Gumina v. City of Sterling, 119 P.3d

527, 532 (Colo. App. 2004) (citing § 24-72-204(6)(a)).

¶ 12 The court permitted DPS to file, no later than December 2,

2022, an application to restrict access to the subject records

premised on the “substantial injury to the public interest” exception

contained in section 24-72-204(6)(a), and it ordered that any

response must be filed no later than December 9, 2022. DPS and

DSLA filed a joint motion to bar the Gazette from accessing the

subject records under section 24-72-204(6)(a) on December 2. The

Gazette filed an objection to the joint motion, and the court

5
scheduled an evidentiary hearing on the motion for January 23,

2023.

¶ 13 Three days before the hearing, DSLA filed with the court a

letter it had sent to the Gazette’s counsel on January 13, 2023 (the

DSLA letter). In its letter, DSLA previewed the anticipated

testimony of its witness Dr. Moira Coogan, a DPS principal, and

argued, for the first time in this case, that the subject records were

protected from disclosure under section 22-9-109(1) of CLPPEA, as

well as under CORA.

¶ 14 The Gazette responded with two filings. First, it filed a motion

in limine in which it argued, among other points, that the court

should preclude Coogan from testifying at the hearing because her

testimony would be “non-factual and irrelevant.” Second, it filed a

motion to strike the DSLA letter because the letter constituted an

unauthorized surreply or supplemental brief.

¶ 15 At the hearing, the court denied the Gazette’s motions,

although it granted the Gazette’s counsel an opportunity to respond

to the arguments raised in the DSLA letter. The court further

allowed the Gazette to object on relevance grounds to testimony

presented at the hearing and to address the legal arguments in the

6
DSLA letter “during closing arguments and through the submission

of post-hearing proposed findings of fact and conclusions of law.”

The Gazette’s counsel consented to the court’s proposed

accommodations.

¶ 16 The court then heard testimony from Jennifer Troy, a senior

DPS administrator. She testified that school administrators

reasonably expected that their evaluation reports and the public

records used in preparing them would remain confidential and that

upending such expectation would make it difficult for DPS to recruit

and retain school leaders. She also explained that disclosure would

damage school leaders’ trust in the supervisors who coach and

encourage the leaders to learn from their mistakes.

¶ 17 Coogan testified that all DPS principals and assistant

principals must hold professional licenses and are evaluated under

CLPPEA. She said that any documented corrective action regarding

a principal or assistant principal is part of the “body of evidence”

used in preparing their evaluations.

¶ 18 In a written order, the court concluded that DPS and

DSLA “carried their burden of proof and . . . established that

disclosure of the [subject] records as requested by [the Gazette]

7
would substantially injure the public.” The court specifically found

that disclosure of the subject records would “likely result in DPS

having substantial difficulty retaining DPS school leaders and

recruiting new candidates to serve as school leaders”; negatively

impact “the goal of coaching and improving DPS school leaders”;

and have “a chilling effect on the ability of supervisors to effectively

train school principals, assistant principals and administrators.”

¶ 19 The court concluded that, for these reasons, the Gazette was

not entitled to inspect the subject records because of CORA’s

substantial injury exception. While the court acknowledged the

CLPPEA argument that DSLA raised in its letter and at the hearing,

the court did not rely on section 22-9-109(1) in concluding that the

subject records were exempt from disclosure. The Gazette appeals

the court’s order denying its request to inspect the subject records.

II. Analysis

¶ 20 The Gazette contends that the court erred by

(1) allowing DSLA to file the DSLA letter, which the Gazette

characterizes as an unauthorized surreply or

supplemental brief, and by allowing DSLA to present new

arguments in the DSLA letter;

8
(2) permitting Coogan to provide what the Gazette

characterizes as improper opinion testimony;

(3) concluding that DPS and DSLA met their burden of

proving that disclosing the subject records would cause

substantial injury to the public interest; and

(4) failing to address the Gazette’s request for an award of

attorney fees and costs under section 24-72-204(5)(b) of

CORA.

¶ 21 We hold that CLPPEA protected the subject records from

disclosure, and we do not reach the separate issue of whether their

disclosure would cause substantial injury to the public interest

under CORA.

A. The DSLA Letter

¶ 22 The Gazette first contends that the court erred by allowing

DSLA to assert, only days before the hearing, the legal arguments

presented for the first time in the DSLA letter. Similarly, the

Gazette argues that the DSLA letter was a surreply or supplemental

brief that DSLA could not file without prior leave of court.

¶ 23 We review a district court’s decision to accept or reject a brief

for an abuse of discretion. See Olson v. State Farm Mut. Auto. Ins.

9
Co., 174 P.3d 849, 860 (Colo. App. 2007) (holding that a trial court

has the discretion to deny a request to file a surreply); see also U.S.

Bank Tr., N.A. v. Rudick, 67 N.Y.S.3d 646, 647 (App. Div. 2017)

(“While unauthorized surreplies containing new arguments

generally should not be considered,” a court has “the authority to

regulate the motion practice before it, as well as the discretion to

determine whether to accept late papers or even surreply papers for

‘good cause.’” (quoting N.Y. C.P.L.R. 2214(c) (McKinney 2024))). “A

trial court abuses its discretion if its decision is manifestly

unreasonable, arbitrary, or unfair, or it misapplies the law.” HMLL

LLC v. MJM Holdings Ltd., 2024 COA 85, ¶ 17, ___ P.3d ___, ___.

¶ 24 The Gazette cites federal court authorities not binding on this

court to support its argument that DSLA required leave of court

before it could submit its purported surreply or supplemental brief.

But the Gazette fails to point us to any binding authority holding

that a Colorado state court abuses its discretion by accepting a

“surreply” or a “supplemental brief” that the court did not

previously authorize, particularly if, as here, the document raises

relevant legal issues, and the court takes affirmative steps to

minimize any resulting prejudice to the opposing party.

10
¶ 25 Contrary to the Gazette’s assertion, for two reasons, the

authorities and arguments raised in the DSLA letter were relevant

to whether the Gazette had the right to inspect the subject files.

First, those authorities and arguments were germane to

determining whether a “substantial injury to the public interest”

justified nondisclosure of the subject records under section

24-72-204(6)(a). In its order concluding that the Gazette was not

entitled to inspect the subject records, the court explained that

DPS’s administrators had a reasonable expectation that the subject

records would be kept confidential because CLPPEA protects from

disclosure the evaluation reports of school districts’ licensed

personnel and the public records used in preparing them. See

§ 22-9-109(1).

¶ 26 DSLA explained in its letter that the collective bargaining

agreement between DPS and DSLA informed the school

administrators that the subject records would be kept confidential,

consistent with section 22-9-109(1). DSLA also noted that

“substantial injury to the public interest” would result if DPS

disregarded those expectations by publicly disclosing documents

that the school administrators understood would be kept

11
confidential. Specifically, DSLA asserted, with support from Troy’s

testimony, that “disclosure of the [subject] records would impair the

ability of administrators to provide candid and accurate

evaluations, and that DPS would have trouble recruiting and

retaining school leaders” as a consequence. The Gazette did not

call any witnesses at the hearing, much less witnesses to rebut

Coogan’s and Troy’s testimony.

¶ 27 Second, as we discuss below in Part II.C.2, the authorities and

arguments in the DSLA letter addressed an independent legal basis

for denying the Gazette’s request to inspect the subject files. In

denying the Gazette’s motion to strike the DSLA letter, the court

explained that it “want[ed] to get this case right,” apparently

meaning that it wished to review all applicable legal authorities. As

the court explained,

[W]hether it’s prejudicial to [the Gazette] or
not, I have to consider what the legal structure
is that exists . . . and what the expectations
are. So I can’t ignore a statute, I can’t ignore a
pattern of practice, right? Just because it
might prejudice [the Gazette] because [DSLA]
raised it at the last minute. I can’t ignore that
stuff.

12
¶ 28 Moreover, the court took steps to minimize any prejudice to

the Gazette resulting from the court’s consideration of the DSLA

letter, even though DSLA tendered its letter to the court only three

days before the hearing. The court noted, “In my toolbox, . . .

things that I can do to remedy prejudice are grant continuances, . .

. allow additional briefing, things along those lines.” The court said

it would allow the Gazette “to respond to the legal arguments made

by DSLA during closing arguments and through the submission of a

post-hearing proposed findings of fact and conclusions of law.”

¶ 29 The Gazette’s counsel accepted the court’s offer of an

opportunity for “additional briefing at the close of this hearing.”

Significantly, the Gazette’s counsel expressed no objection to the

court’s proposed procedure to minimize any prejudice to the Gazette

resulting from the filing of the DSLA letter so close to the hearing

date.

¶ 30 These efforts demonstrate that the court’s decision to accept

the DSLA letter was not “manifestly unreasonable, arbitrary, or

unfair,” as the Gazette now contends, but rather reflected the

court’s exercise of judicial discretion to ensure that the issues in

this case were fairly and thoroughly adjudicated. See HMLL LLC,

13
¶ 17, ___ P.3d at ___. Therefore, we hold that the court did not

abuse its discretion by considering the arguments and authorities

in the DSLA letter or by allowing DSLA to submit it without prior

leave of court.

B. Coogan’s Testimony

¶ 31 The Gazette further contends that the court erred by allowing

Coogan to provide what it characterizes as improper opinion

testimony interpreting CLPPEA.

¶ 32 A lay witness may testify to opinions or inferences that are

“(a) rationally based on the perception of the witness, (b) helpful to a

clear understanding of the witness’ testimony or the determination

of a fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of [CRE] 702.” CRE 701.

We review a district court’s decision to admit evidence for an abuse

of discretion. Wolven v. Velez, 2024 COA 8, ¶ 9, 547 P.3d 423, 426.

¶ 33 Coogan’s testimony did not exceed the bounds of CRE 701.

DPS and DSLA’s CORA argument rested primarily on their

contention that disclosing the subject records would result in

substantial injury to the public interest. The school administrators’

expectation that their evaluation reports and the public records

14
used in preparing those reports would remain confidential rested, in

part, on their understanding of CLPPEA and the other statutes that

DPS and DSLA cited in their court filings. To support these

arguments, they called Coogan and other witnesses to explain the

administrators’ expectations and the grounds for those

expectations — not to interpret the cited statutes.

¶ 34 For example, based on her firsthand experience as a DPS

principal and the president of DSLA, Coogan testified how CLPPEA

affects her work in evaluating employees. Specifically, she testified,

“My expectation would [be] — that it would be confidential because

in the statute that governs all of our evaluations, it’s laid out

that . . . the evaluation report and the evaluation ratings are

confidential for everybody covered under that statute, which would

include principals and assistant principals.” Coogan’s testimony

encompassed only her own expectations regarding how CLPPEA

affected her job responsibilities. This factual information complied

with CRE 701 and was within the scope of her personal knowledge.

See CRE 602 (stating that a fact witness may only testify to a

matter if the witness has personal knowledge of the matter).

15
¶ 35 Further, Coogan’s testimony supported DSLA’s argument that

CLPPEA provides an independent basis to deny disclosure.

¶ 36 Because the testimony was relevant and complied with CRE

701, we hold that the court did not abuse its discretion by allowing

it.

C. Disclosure of the Subject Records

¶ 37 Although the court concluded that the Gazette was not

entitled to inspect the subject records because their disclosure

would do “substantial injury to the public interest,”

§ 24-72-204(6)(a), we resolve this appeal by applying CLPPEA rather

than CORA. We do so because section 22-9-109(1) independently

bars disclosing the subject records to the Gazette. Thus, we need

not reach the parties’ CORA arguments.

1. Preservation and Standard of Review

¶ 38 The Gazette argues that we should not consider CLPPEA as an

independent basis to deny inspection because DSLA did not

preserve its CLPPEA argument. We disagree.

¶ 39 “If a party raises an argument to such a degree that the court

has the opportunity to rule on it, that argument is preserved for

appeal.” Madalena v. Zurich Am. Ins. Co., 2023 COA 32, ¶ 50, 532

16
P.3d 776, 788 (quoting Brown v. Am. Standard Ins. Co. of Wis., 2019

COA 11, ¶ 21, 436 P.3d 597, 600). In the DSLA letter, which, as

discussed above, the court accepted in its discretion, DSLA raised

CLPPEA as an independent basis to deny disclosure of the subject

records. It is of no consequence that the court chose to resolve the

issue under CORA instead. Because DSLA presented the “sum and

substance” of its CLPPEA argument to the court, it is properly

preserved for appellate review. Id. (quoting Berra v. Springer &

Steinberg, P.C., 251 P.3d 567, 570 (Colo. App. 2010)).

¶ 40 We are likewise unpersuaded by the Gazette’s argument that

we should not consider CLPPEA because the Gazette did not

address the statute in its opening brief. The Gazette misses the

point that DSLA included the CLPPEA argument in its answer brief

in response to the CORA argument in the Gazette’s opening brief.

The Gazette does not cite any authorities barring us from

considering responsive arguments in an answer brief. Cf. People v.

Rainer, 2013 COA 51, ¶ 80, 412 P.3d 520, 537 (declining to

consider the appellee’s new arguments made during oral argument

that were not made either in the trial court or in the answer brief on

appeal), rev’d on other grounds, 2017 CO 50, 394 P.3d 1141. In any

17
event, we may affirm the court’s decision on any ground supported

by the record. See Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe,

107 P.3d 402, 406 (Colo. App. 2004).

¶ 41 “Issues of statutory construction . . . are questions of law that

we review de novo.” Carousel Farms Metro. Dist. v. Woodcrest

Homes, Inc., 2019 CO 51, ¶ 40, 442 P.3d 402, 411. When

interpreting a statute, “[w]ords and phrases are to be given their

plain and ordinary meanings, read in context, and construed

according to the rules of grammar and common usage.” Id.

¶ 42 “In evaluating a district court’s ruling under CORA, we review

the court’s factual findings for clear error but review its

construction and application of CORA de novo.” Simpson v.

Harmer, 2024 COA 30, ¶ 14, 551 P.3d 669, 673; see also Jefferson

Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 2016 COA 10,

¶ 13, 378 P.3d 835, 838. Although no Colorado appellate court has

previously applied these general standards of review to CLPPEA, we

conclude that the standards of review governing a district court’s

CORA rulings also govern appellate review of CLPPEA rulings.

18
2. CLPPEA Bars Disclosure of the Subject Records

¶ 43 The General Assembly explained in CLPPEA that “[a] system to

evaluate the effectiveness of licensed personnel is crucial to

improving the quality of education in this state” and “declare[d] that

such a system shall be applicable to all licensed personnel in the

school districts . . . throughout the state.” § 22-9-102(1)(a), C.R.S.

2024. Among other provisions, CLPPEA prescribes the processes

that the state’s educational bodies must follow when evaluating

their teachers and administrators. See §§ 22-9-104 to -108, C.R.S.

2024.

¶ 44 Section 22-9-109(1) of CLPPEA provides that

“[n]otwithstanding section 24-72-204(3), an evaluation report and

all public records . . . that are used in preparing the evaluation

report are confidential.” Section 24-72-204(3)(a) is the CORA

provision that lists the types of public records for which “[t]he

custodian shall deny the right of inspection . . . , unless otherwise

provided by law.”

¶ 45 Under section 22-9-109(1), “an evaluation report and all

public records . . . that are used in preparing the evaluation report”

may only be disclosed “to an educator being evaluated, to the duly

19
elected and appointed public officials who supervise the educator’s

work, and to a hearing officer conducting a hearing . . . or the court

of appeals reviewing a decision of the local board of education.” An

evaluation report and all public records used in preparing the

evaluation report are otherwise confidential. (Section 22-9-109(1)

also contains two exceptions not applicable here: Certain

“evaluation report[s] of the chief executive officer of any school

district . . . must be open for inspection by any person at

reasonable times,” and “[e]valuation reports and all public

records . . . used in preparing the evaluation reports are available to

individuals responsible for reviewing an appeal made by a

nonprobationary teacher.” § 22-9-109(1)(a)-(b).)

¶ 46 The use of “[n]otwithstanding” in the first clause of section

22-9-109(1) informs us that the General Assembly intended

subsection (1) to make clear that the disclosure exceptions in CORA

do not preclude other statutory exceptions. “The word

‘Notwithstanding’ is one in opposition to, and not one of

compatibility with, another statute. In fact, the word

‘Notwithstanding’ actually means ‘in spite of.’” Theodore Roosevelt

Agency, Inc. v. Gen. Motors Acceptance Corp., 398 P.2d 965, 966

20
(Colo. 1965) (first citing The New Roget’s Thesaurus of the English

Language in Dictionary Form (Norman Lewis ed. 1961); and then

quoting Webster’s New International Dictionary (2d ed. 1958)); see

Premier Car Rental, Inc. v. Gov’t Emps. Ins. Co., 637 N.Y.S.2d 177,

178-79 (App. Div. 1996) (“[N]otwithstanding” means “without

prevention or obstruction from or by; in spite of.” (quoting Webster’s

Third New International Dictionary 1545 (1961))). Further, CORA

itself contemplates that other statutes can provide an exception to

CORA’s disclosure requirements. See § 24-72-204(1)(a) (“The

custodian of any public records shall allow any person the right of

inspection of such records or any portion thereof except . . . [if]

[s]uch inspection would be contrary to any state statute.”).

¶ 47 Thus, section 22-9-109(1) prohibits disclosing evaluation

reports of licensed school administrators and all public records

used in preparing such reports, regardless of whether such

documents are subject to disclosure under CORA. For this reason,

we examine whether, as a matter of law, the subject records are the

type of documents that section 22-9-109(1) protects from

disclosure.

21
¶ 48 The subject records are “[p]ublic records” because they are

“writings made, maintained, or kept by . . . [a] political subdivision

of the state . . . for use in the exercise of functions required or

authorized by law . . . or involving the receipt or expenditure of

public funds.” § 24-72-202(6)(a)(I). “[E]very . . . school district . . .

within this state” is a “[p]olitical subdivision.” § 24-72-202(5). DPS

is undisputedly a school district. The evidence showed that DPS

makes, maintains, or keeps the subject records “for use in the

exercise of functions required or authorized by law” — evaluations

of DPS administrators. § 24-72-202(6)(a)(I).

¶ 49 The court found, based on the witnesses’ testimony, that the

subject records consist exclusively of the type of documents “used

in preparing” evaluation reports of DPS administrators. § 22-9-

109(1). We do not second-guess that finding of fact because the

record supports it. See Carousel Farms Metro. Dist., ¶ 19, 442 P.3d

at 407 (explaining that appellate courts do not make findings of

fact). Therefore, under section 22-9-109(1)’s plain language, the

Gazette is not entitled to inspect the subject records.

¶ 50 Our interpretation of CLPPEA is consistent with the

regulations implementing the statute. Those regulations do not call

22
into question our determination that a school district employee’s

disciplinary records are part of the body of evidence used in

preparing the employee’s evaluation report. See Dep’t of Educ.

Rules 1.14, 2.2(D), 2.2(D)(1), 5.1(A)(3), 5.1(A)(4), 1 Code Colo. Regs.

301-87.

¶ 51 All Colorado school districts must use a “Principal Evaluation

System” when evaluating their principals. Id. at Rule 1.14. A

school district’s principal evaluation system must include

consideration of the principal’s “professionalism through ethical

conduct, reflection, and external leadership,” including whether the

principal “demonstrate[s] high standards for professional conduct.”

Id. at Rules 2.2(D), 2.2(D)(1). In addition, the principal’s evaluation

must include “the weighting and aggregation of evidence of

performance.” Id. at Rule 1.14. These rules indicate that a

principal’s disciplinary history is part of the body of evidence that

informs the principal’s evaluation report. It would be surprising

indeed if a school district did not use documentation of discipline

imposed against a principal when evaluating the principal.

¶ 52 Further, the purposes of a school district’s principal

evaluation system include, as relevant here, “serving as

23
documentation for an unsatisfactory performance dismissal

proceeding” and “serving as a measurement of the professional

growth and development of licensed personnel.” Id. at Rules

5.1(A)(3), 5.1(A)(4). Disciplinary records must be included in the

documentation for an unsatisfactory performance dismissal

proceeding.

¶ 53 Moreover, DPS’s policies and training materials for evaluators

reinforce our interpretation of CLPPEA. DPS instructs its

evaluators to “utilize a robust body of evidence in scoring leaders

that includes continuous improvement processes, coaching

conversations, observations, school/classroom visits, walk

throughs, survey data, CollaboRATE feedback, informal feedback,

staff and community input, 1:1 meetings, goals, the school[’]s

strategic plan, the Black Excellence Plan and professional practice

and assessment data.” Denver Pub. Schs., Leadership Excellence

and Development, LEAD Framework 6 (Aug. 2023),

https://perma.cc/XFX3-QZTE. Nothing in that body of evidence

suggests that documents concerning an administrator’s disciplinary

history are excluded when the administrator is evaluated.

24
¶ 54 The Gazette argues that CLPPEA has no bearing on its request

for the subject records because CLPPEA “narrowly applies to the

enumerated evaluative paperwork public agencies must generate to

comply with CLPPEA’s operative provisions.” But we must construe

CLPPEA’s scope as drafted, not as the Gazette characterizes it. As

explained above, CLPPEA unequivocally bars school districts from

disclosing to third parties any licensed professionals’ “evaluation

reports” and the documents “used in preparing” those reports. The

record shows that the subject records are among the documents

“used in preparing” the evaluation reports of DPS administrators.

¶ 55 In addition, the Gazette urges us to interpret CLPPEA narrowly

to avoid “exempt[ing] vast categories of information from

disclosure.” But again, we must apply CLPPEA as drafted. Our role

is not to second-guess the General Assembly’s policy decisions. If

the Gazette believes that CLPPEA 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.

25
D. Attorney Fees

¶ 56 The Gazette requested an award of attorney fees and costs, as

well as appellate fees, under section 24-72-204(5)(b) of CORA. The

parties dispute whether the Gazette preserved its request. But

regardless of whether the issue is preserved, the Gazette is not

entitled to an award of attorney fees and costs because it did not

succeed in obtaining a court order requiring DPS to allow it to

inspect the subject records. See id.

¶ 57 The Gazette further argues that it is entitled to an award of

fees and costs because it “prevailed on the issue of whether the

[subject] records were ‘personnel files’” when the court concluded,

midway through the proceedings, that DPS could not withhold the

subject records on that basis. But the litigation did not end there.

¶ 58 CORA does not authorize fee and cost awards on the grounds

that the requester won a preliminary legal skirmish if the requester

ultimately failed to win a ruling granting access to the requested

documents. The relevant language of CORA provides that, “[u]nless

the court finds that the denial of the right of inspection was proper, it

shall order the custodian to permit such inspection and shall award

court costs and reasonable attorney fees to the prevailing applicant

26
in an amount to be determined by the court.” § 24-72-204(5)(b)

(emphasis added).

¶ 59 At the conclusion of the proceedings, the court determined

that “the denial of the right of inspection was proper.” In light of

this determination and our affirmance of the court’s ruling, the

Gazette was not a “prevailing applicant” under CORA. See Colo.

Republican Party v. Benefield, 337 P.3d 1199, 1206 (Colo. App.

2011) (“[A] prevailing applicant is one who obtains an order

directing ‘the custodian to permit . . . inspection’ of a given public

record.” (quoting § 24-72-204(5), C.R.S. 2011)), aff’d, 2014 CO 57,

329 P.3d 262.

¶ 60 Thus, we deny the Gazette’s request for an award of attorney

fees and costs.

III. Disposition

¶ 61 The order is affirmed.

JUDGE J. JONES and JUDGE HAWTHORNE concur.

27