2. Discussion of each exemption.

Public records not subject to the act

(1) The following records are specifically exempt from disclosure under the Act, except that such records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest.

a. Medical, psychological, sociological, and scholastic achievement data on individual persons, other than scholastic achievement data submitted as part of finalists’ records as set forth in Colo. Rev. Stat. § 24-72-204(3)(a)(XI). Colo. Rev. Stat. § 24-72-204(3)(a)(I).

This does not include coroners’ autopsy reports.

Nor does it include group scholastic data from which the individual cannot be identified. See Sargent School Dist. No. RE-33J v. Western Services Inc., 751 P.2d 56 (Colo. 1988). However, individual scholastic data may not be disclosed under the Open Records Act even if the individuals’ names have been deleted. Id. The schools have no implied duty to convert individual scholastic data into group scholastic data documents.

b. Personnel files. Colo. Rev. Stat. § 24-72-204(3)(a)(II).

"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), means and includes home addresses, telephone numbers, financial information, and other information maintained because of the employer-employee relationship, including other documents specifically exempt from disclosure by law. Only information that is akin to an employee’s home address, telephone number and personal financial information is properly classified as “personnel file.” Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).

"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. Because employment applications are public records, an applicant cannot waive the right to information concerning denial of an application for employment. Carpenter v. Civil Service Commission, 813 P.2d 773 (Colo. App. 1990).

Employment records concerning the terms of employment and compensation of employees, including agreements made in settlement of disputed claims, are public records. Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo. App. 1990; Freedom Colo. Info. Inc. v. City of Colo. Springs, 37 Med.L.Rptr. (BNA) 1639 (Ct. App. Feb. 26, 2009) (requiring disclosure of employment agreements for two heart-lung surgeons on staff at public hospital);  See Colo. Rev. Stat. § 24-72-204(3)(a)(II)(B).

Only documents that are actually present in an employee’s personnel file are exempt from disclosure under the Act. Denver Post v. University of Colorado, 739 P.2d 874, 878 (Colo. App. 1987). A public employer cannot restrict access to documents that are otherwise subject public records merely by placing them in an employee’s personnel file; such records must implicate an employee’s personal privacy to qualify as a “personnel record.” Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo. App. 1990).

Personnel files are available to the person in interest and to duly elected and appointed public officials who supervise the employee’s work. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). See Ornelas v. Department of Institutions, 804 P.2d 235 (Colo. App. 1990).

c. Letters of reference. Colo. Rev. Stat. § 24-72-204(3)(a)(III). Letters of reference concerning employment, licensing or issuance of permits are not available to the person in interest. Colo. Rev. Stat. § 24-72-204(3)(a). City of Westminster v. Dogan Constr. Co., 930 P.2d 585 (Colo. 1997) (telephone survey notes of references are “letters of reference").

d. Trade secrets, Colo. Rev. Stat. § 24-72-204(3)(a)(IV), including privileged information and confidential commercial, financial, geological or geophysical data furnished by or obtained from any person. See Griffin v. S.W. Devanney & Co., 775 P.2d 555 (Colo. 1989); International Bhd. of Elec. Workers Local 68 v. Denver Metro. Major League Baseball Stadium Dist., 880 P.2d 160 (Colo. App. 1994); Zubeck v. El Paso Cty. Retirement Plan, 961 P.2d 597 (Colo. App. 1998) (only information obtained by private parties is subject to this exemption).

e. Information about library and museum material contributed by private persons, Colo. Rev. Stat. § 24-72-204(3)(a)(V), but only to the extent of any limitations placed on such information as a condition of contribution. Thus, the identity of an anonymous donor may not be divulged if anonymity of the donor is a condition of the gift or loan.

f. Addresses and telephone numbers of students in public elementary and secondary schools. Colo. Rev. Stat. § 24-72-203(3)(a)(VI).

g. Library records disclosing the identity of a user. Colo. Rev. Stat. § 24-72-203(3)(a)(VII); Colo. Rev. Stat. § 24-90-119 (see below).

h. Records disclosing the addresses, telephone numbers, and personal financial information of past or present users of public utilities, public facilities, or recreational or cultural services owned and operated by the state, its agencies, institutions, or political subdivisions. Colo. Rev. Stat. § 24-72-203(3)(a)(IX).

i. Records of sexual harassment complaints and investigations. Colo. Rev. Stat. § 24-72-204(3)(a)(X).

Any records of sexual harassment complaints and investigations that are maintained pursuant to any rule of the general assembly on a sexual harassment policy, whether or not such records are maintained as part of a personnel files, are not open to inspection. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(A). However, an administrative agency investigating the complaint may, upon a showing of necessity, gain access to information necessary to the investigation of such a complaint. Id.

A person in interest, who includes the person making a complaint and the person whose conduct is the subject of such a complaint, may make a record of sexual harassment complaint or investigation available for public inspection when such record supports the claim that an allegation of sexual harassment against such person is false. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(C).

j. Records submitted by or on behalf of an applicant or candidate for an “executive position” who is not a “finalist” if the applicant or candidate makes a written request that the records be kept confidential at the time of submission of the records. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A).

"Executive position” is defined by Colo. Rev. Stat. § 24-72-202(1.3) as any non-elective employment position with a state agency, institution, or political subdivision, except employment positions in the state personnel system or in a classified system or civil service system of an institution or political subdivision.

A “finalist” is defined by Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A) as an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5); if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, then said applicants or candidates shall be considered finalists..

Records submitted by or on behalf of an applicant or candidate include records of employment selection processes for all executive positions, including selection processes conducted or assisted by private persons or firms at the request of a state agency, institution, or political subdivision. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(C).

k. Any record which is deemed confidential or protected from inspection by:

State statute. Colo. Rev. Stat. § 24-72-204(1)(a). (See (B) below.)

Federal statute or regulation. Colo. Rev. Stat. § 24-72-204(1)(b).

Supreme Court rule or court order. Colo. Rev. Stat. § 24-72-204(1)(c).

(2) The Custodian of Records has the discretionary authority to deny inspection of the following records on the ground that disclosure would be contrary to the public interest:

a. Test questions, scoring keys, and other examination data pertaining to administration of licensing examinations, examinations for employment, or academic examinations. Colo. Rev. Stat. § 24-72-204(2)(a)(II). See Garner v. Colorado State Dep’t of Personnel, 835 P.2d 527 (Colo. App. 1992), cert. denied, 507 U.S. 917 (1993).

b. Specific details of bona fide research projects being conducted by a state institution. Colo. Rev. Stat. § 24-72-204(2)(a)(III).

c. Contents of real estate appraisals made for the state or political subdivision concerning acquisition of property for public use until title to the property has passed to the state or political subdivision. Colo. Rev. Stat. § 24-72-204(2)(a)(IV). The contents of an appraisal are available to the property owner if eminent domain proceedings are brought.

d. Any market analysis data generated by the Department of Transportation’s bid analysis and management system for the confidential use of the department for awarding contracts or for the purchase of goods and services, and any records, documents, and automated systems prepared for the bid analysis and management system. Colo. Rev. Stat. § 24-72-204(2)(a)(V).

e. Photographs filed with, maintained by, or prepared by the Department of Revenue pursuant to Colo. Rev. Stat. § 42-2-121(2)(c)(I)(F). Colo. Rev. Stat. § 24-72-204(2)(a)(VI).

f. NOTE: If the right of inspection of any of the above records is allowed to any person in the media, it shall be allowed to all news media. Colo. Rev. Stat. § 24-72-204(2)(b).

(3) “Substantial Injury to the Public Interest."

a. The Open Records Act in Colo. Rev. Stat. § 24-72-204(6) provides that if the official custodian of any public record is of the opinion that disclosure of the contents of a record otherwise subject to disclosure would do “substantial injury to the public interest,” the custodian may request the district court to order that disclosure of the record is restricted.

b. Any hearing is to be held “at the earliest practical time.” The person seeking to examine the record has a right to appear at the hearing.

c. The custodian has the burden of proving that disclosure would substantially injure the public interest. This is primarily a question of fact. Civil Service Comm’n v. Pinder, 812 P.2d 645 (Colo. 1991).

d. If the court determines that disclosure would do “substantial injury to the public interest,” the court may restrict access to public records even though such records might otherwise be available to the person in interest or the general public. Civil Service Comm’n v. Pinder, 812 P.2d 645 (Colo. 1991).