2021 COA 26
Colo. Ct. App.2021Background
- CU President Bruce Benson announced retirement; the Board of Regents used a search firm and internal committee to narrow >100 applicants to a smaller pool and ultimately to six candidates the Regents interviewed.
- The Regents publicly announced only one individual — Mark Kennedy — as a finalist, then publicly vetted him and later appointed him president.
- The Daily Camera requested under CORA and the OML the names and application materials for applicants the search committee selected and the six Regents interviewees; CU released only Kennedy’s records (and later produced others after a leak) and declined to produce the remaining records.
- The Denver District Court held the six Regents-interviewed candidates were "finalists" and ordered disclosure of their records.
- The Colorado Court of Appeals reversed, holding the statutory definition of "finalist" means those persons an appointing entity has "made public" under § 24-6-402(3.5), so the Regents permissibly treated Kennedy as the sole finalist.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "finalist" under CORA/OML | "Finalist" includes multiple candidates (e.g., those interviewed by the Regents); those records must be disclosed | "Finalist" means an applicant who is publicly identified as a finalist under §24-6-402(3.5); appointing entity may name only one | Court of Appeals: "finalist" means a person made public pursuant to §24-6-402(3.5); Regents could designate a single finalist (Kennedy) |
| Award of attorney fees on appeal under CORA | Daily Camera seeks fees under §24-72-204(5)(b) if disclosure denial was improper | CU argues its non-disclosure complied with CORA/OML so no fees | Court of Appeals: CU prevailed on appeal; deny Daily Camera fees on appeal and reverse district court's fee award |
Key Cases Cited
- Dep't of Transp. v. City of Idaho Springs, 192 P.3d 490 (Colo. App. 2008) (courts may not rewrite statutes to improve them)
- Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005) (de novo review applies to CORA statutory interpretation)
- Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d 465 (Colo. 1998) (legislative definition of a term controls its meaning)
- City of Westminster v. Dogan Constr. Co., 930 P.2d 585 (Colo. 1997) (exceptions to CORA must be narrowly construed)
- Henisse v. First Transit, Inc., 247 P.3d 577 (Colo. 2011) (legislative intent prevails over literal readings that yield absurd results)