Opinion
No. 94CA1032
Decided July 27, 1995. Petition for Rehearing DENIED August 31, 1995. (Davidson, J., would GRANT). Petition for Writ of Certiorari GRANTED March 25, 1996
Appeal from the District Court of Adams County Honorable Donald W. Marshall, Jr., Judge No. 94CV348.
ORDER REVERSED AND CAUSE REMANDED WITH DIRECTIONS.
Martin R. McCullough, City Attorney, Office of the City Attorney, Westminster, Colorado, for Petitioner-Appellee and Cross-Respondent City of Westminster and Respondent-Appellee and Cross-Respondent Robert Booze.
Wells, Love Scoby, Kenneth D. Robinson, Boulder, Colorado, for Respondent-Appellant and Cross-Petitioner.
Respondent, Dogan Construction Company, Inc. (Dogan), appeals from the order of the trial court granting petitioner, City of Westminster (the City), the right to withhold certain public documents from inspection pursuant to the "letter of reference of employment" exception to the Colorado Open Records Act. We reverse and remand with directions.
In early 1994, the City took construction bids for the upgrading of its Big Dry Creek wastewater treatment plant. Dogan was the low bidder. Another construction firm, Centric-Jones, was the second low bidder.
At the direction of the City, its engineering consultant, HDR Engineering, Inc., conducted a telephone survey of the references of Dogan and Centric-Jones and of other individuals who may have had information about the past performance of those two companies. The HDR employees who made the phone calls summarized the responses on survey sheets.
Based upon the information received, HDR recommended that the contract be awarded to Centric-Jones. Claiming inaccuracies in the City's reference information, Dogan protested the recommendation and submitted to the City several favorable letters of reference from entities contacted by HDR. The City nonetheless awarded the contract to Centric-Jones.
Acting pursuant to the Colorado Open Records Act, § 24-72-201, et seq., C.R.S. (1988 Repl. Vol. 10B), Dogan then submitted a request to inspect the telephone survey notes. The City filed a petition in the trial court requesting that it be allowed to withhold the telephone notes on the basis that disclosure would do substantial injury to the public interest. Dogan filed a separate action seeking an order from the trial court requiring the City and its custodian of records, Robert Booze, to show cause why they should not be compelled to disclose the telephone survey notes. The two actions were consolidated.
The parties stipulated that the trial court could determine as a matter of law whether the telephone survey notes were "letters of reference concerning employment" and therefore exempted from disclosure pursuant to § 24-72-204(3)(a), C.R.S. (1988 Repl. Vol. 10B). Based upon the briefs and arguments of counsel and an in camera review of the disputed documents, the trial court found that the notes were letters of reference concerning employment and therefore granted the City's request to be allowed to withhold the documents from inspection. Because of its ruling, the trial court did not need to address the City's additional contention, based on § 24-72-204(6), C.R.S. (1988 Repl. Vol. 10B), that disclosure of the documents would "cause substantial injury to the public interest."
Dogan contends that the trial court erred by determining that the telephone survey notes were letters of reference concerning employment and thereby exempted from disclosure. We agree.
The overall policy of the General Assembly in enacting the Colorado Open Records Act is set forth in the legislative declaration in § 24-72-201:
It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise specifically provided by law.
Notwithstanding the general policy favoring disclosure of public records, § 24-72-204(3)(a) contains various exceptions, including the following:
The custodian shall deny the right of inspection of the following records, unless otherwise provided by law; except that any of the following records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest under this subsection (3):
. . . .
(III) Letters of reference. . . . (emphasis added)
The upshot of these provisions is that while the public at large is not entitled to inspect letters of reference, a person in interest is entitled to do so unless the records constitute "letters of reference concerning employment, licensing, or issuance of permits," in which case they are unavailable even to the person in interest.
Our supreme court has recognized that exceptions to the broad, general policy of the Act favoring disclosure are to be narrowly construed. Sargent School District No. RE-33J v. Western Services, Inc., 751 P.2d 56 (Colo. 1988). Also, because of the presumption in favor of disclosure and because the party opposing disclosure is likely to possess superior knowledge concerning the nature of the affected documents and information, the burden of establishing an exception rests with such party. International Brotherhood of Electrical Workers Local 68 v. Denver Metropolitan Major League Baseball Stadium District, 880 P.2d 160 (Colo.App. 1994).
Our primary task in interpreting a statute is to ascertain and give effect to the intent of the General Assembly. In ascertaining that intent, we must first look to the plain language of the statute itself, giving the terms their commonly understood and accepted meanings. People v. McNeese, 892 P.2d 304 (Colo. 1995); Organ v. Jorgensen, 888 P.2d 336 (Colo.App. 1994).
According to Black's Law Dictionary 813 (5th Ed. 1979), a letter is "a dispatch or epistle; a written or printed message; a communication from one person to another at a distance." Certainly the telephone survey notes here do not fall within that definition.
Had the General Assembly intended to include telephone notes within the categories of documents excepted from inspection by persons in interest under the Act, it could easily have expanded the exception to include, for example, all writings relating to employment references. It did not do so.
Notably, the term "writings" is broadly defined in the Act to include "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics." Section 24-72-202(7), C.R.S. (1988 Repl. Vol. 10B). In contrast, by confining the exception here to "letters of reference concerning employment," the General Assembly has evinced an intent to protect a much narrower category of public records from disclosure to interested persons.
To give the term "letters of reference concerning employment" the expansive reading the City advocates — to include telephone notes relating to bidding by outside contractors on public projects — would require us not only to reject the common and ordinary meanings of the statutory terms, but also to ignore the requirement that we narrowly construe the exceptions to disclosure. Such an interpretation would also frustrate the basic legislative purpose of the Act, which is to allow access to all public records not specifically exempted by law. See Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974); Pruitt v. Rockwell, 886 P.2d 315 (Colo.App. 1994).
In light of our conclusion that the telephone survey notes here are not "letters of reference" within the meaning of the statute, we need not, and do not, address the additional issue of whether they concern "employment" within the statutory meaning of that term.
Finally, the City argues that the telephone survey notes should be protected from disclosure to Dogan, the person in interest, because the telephone communications were made in confidence and with an expectation of privacy. However, any understanding or promise with respect to confidentiality is essentially irrelevant to whether the documents fall within one of the Act's exceptions to the general requirement of disclosure. International Brotherhood of Electrical Workers Local 68 v. Denver Metropolitan Major League Baseball Stadium District, supra; Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo.App. 1990).
Accordingly, we conclude that the trial court erred in determining that the telephone survey notes are "letters of reference concerning employment" and therefore exempt from disclosure here.
We recognize, however, that the trial court did not consider the City's additional contention that the telephone survey notes might nevertheless be shielded from Dogan upon a showing that their disclosure would cause substantial injury to the public interest. Thus, Dogan concedes, and we agree, that the matter must be remanded to the trial court for an evidentiary hearing under § 24-72-204(6).
Therefore, the order of the trial court is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion.
JUDGE MARQUEZ concurs.
JUDGE DAVIDSON dissents.