Retirement plan records must be disclosed to newspaper
COLORADO–Two state appeals court panels in Denver have ordered the disclosure of retirement plan records in cases brought by The (Colorado Springs) Gazette.
In late June, the state appeals court unanimously held that the El Paso County Retirement Plan and Board of Retirement operate as agencies of the county and are therefore subject to the state Open Records Law and Open Meetings Act. Consequently, the pension fund’s investment records and meeting minutes must be disclosed to the newspaper, the court said.
In a separate case decided in early July, the appeals court unanimously ruled that records reflecting how much was paid to former employees of Colorado Springs Utilities under an early retirement plan must be disclosed. The court rejected the record custodian’s contention that disclosure would cause substantial injury to the public interest by unduly interfering with the privacy rights of public employees, by unduly interfering with their liberty interests, and by chilling employee participation in the retirement plan, ultimately creating a competitive disadvantage for Colorado Springs Utilities.
The state Open Records Act exemption for personnel files does not prevent release of the records, the court held. The definition of “personnel records” specifically excludes “any amount paid or benefit provided incident to termination of employment,” the court noted.
“Even if we were to assume that the articles published in the [newspaper] contained information that was damaging to the reputation of [retirement plan] participants, neither the articles nor the affidavits submitted show how the employees’ professional status would be negatively affected or in what manner future employment opportunities may be foreclosed,” the court wrote.
In the first case, the court held that an exemption for financial information is inapplicable. The financial information exemption applies only to records originating from a private individual or business, not to documents generated by the government itself. Here, the materials sought by the newspaper were created by the retirement plan, the court noted.
Also, an exemption for information that would result in substantial injury to the public interest does not apply, the court said. That catch-all exemption is to be used only in extraordinary situations. Here, there is no evidence that this is an extraordinary situation, or that substantial injury to the public would result from disclosure, the court held.
In response to the decision, the El Paso County Retirement board of directors voted to make the requested records public, The Gazette reported. (Zubeck v. El Paso County Retirement Plan; Media Counsel: Thomas Kelley and Steven Zansberg, Denver; Freedom Newspapers, Inc. v. Tollefson; Media Counsel: Thomas Kelley and Steven Zansberg, Denver)