Bidder on sewage treatment project cannot inspect references

COLORADO–The results of telephone interviews with the references provided by a municipal construction bidder may be withheld from disclosure under an exemption to the state Open Records Act, the state Supreme Court in Denver held in mid-January.

The court ruled that an exemption for “letters of reference concerning employment” permits the city of Westminster to withhold the reference information from the public and from an unsuccessful bidder who had requested access to the information.

The statute denies public access to all letters of reference, but allows an “interested party” to inspect letters of reference other than those “concerning employment.”

Even though the results of the telephone interviews in this case were not actually “letters,” the high court held that the legislature intended to exempt all materials “elicited from references in confidence and designed to inform an evaluation of bidding contractors’ trade skills.” Because they involved the award of a public contract, they were related to employment and could be withheld from the reference subject, the court held.

In 1994, Dogan Construction Company submitted the lowest bid for a sewage treatment project. However, after conducting telephone interviews with all bidders’ references and reviewing the results of those interviews, the city awarded the contract to the second-lowest bidder, not Dogan. Dogan then requested access to a number of documents concerning the project including “all documents relating to the results of the telephone survey.” The city allowed Dogan to inspect all documents except those involving the telephone interviews.

Dogan sued to compel the release of the interview records. The trial court in Brighton held that the city could withhold the records under the “letters of reference concerning employment” exemption. The trial court’s decision was reversed when an appellate court in Denver held that the telephone interview results did not fit the statutory definition of “letters of reference.”

The state Supreme Court reversed that decision, holding that in determining whether the exemption applies, courts should “focus on the legislature’s concern with access to content rather than on the form in which the information appears.” (City of Westminster v. Dogan Construction Company; Requester’s Counsel: Kenneth Robinson, Boulder)