Public's Right to Know Freedom Information: KDB-R

I. INTRODUCTION

Pursuant to policy KDB, the Superintendent issues this regulation governing access to public records held by the District. The intent of this regulation is to provide access to the District's records to the extent required by the Colorado Open Records Act. If there is a conflict between the provisions of this regulation and the Open Records Act, the Open Records Act shall control.

II. DEFINITIONS The following definitions are taken from the Open Records Act, and summarize some of the most important aspects of the terms identified.

• A. "Public Records" shall be defined as all writings made, maintained or kept by the School District for use in the exercise of its functions, including the receipt or expenditure of public funds. It applies only to records which are in existence at the time a request is made. The term does not include most student and employee records. It generally includes correspondence of elected officials.
• B. "Writings" shall be defined as all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics. This includes digitally stored data, including e-mail, computer records, voice mail, optical imaging, etc., but does not include computer software. In general this definition means that most documents created in the course of performing District business are considered to be public records.
• C. "Work Product" shall be defined as all intra- or inter-agency advisory or deliberative materials assembled for the benefit of one or more members of the Board of Education, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such members in reaching a decision within the scope of their authority. It does not include 1) any final version of a document that expresses a final decision by an elected official; 2) a final version of a fiscal or performance audit; 3) a final financial record or report; or 4) materials that would otherwise constitute work product but are produced and distributed in a public meeting. In addition, members of the Board of Education may, with the consent of the Board of Education as a whole, release all or any part of work product prepared for them.
• D. “Records Custodian" shall be defined as the administrator in charge of the division, building or department possessing the records requested, or the designee of such person.
• E. "Personnel Files" means and includes home addresses, telephone numbers, financial information, performance evaluations of employees (except certain aspects of the performance evaluation of the Superintendent -- see C.R.S. 22-9-109) and other information maintained because of the employer-employee relationship. "Personnel Files" does not include applications of past or current employees (except an applicant who is not a finalist for a position who asks at time of submission of application materials that they remain confidential), employment agreements, any amount paid or benefit provided incident to termination of employment, or any compensation, including expense allowances and benefits, paid to employees by the School District.

III. PROCEDURES

Request for Records

• A. All requests for public records (except those documents produced primarily to be distributed to the public, such as pamphlets, program descriptions, etc.) will be made in writing, using the form found on exhibit KDB-2-E. If a request is received via the telephone, the one making the request will be asked to submit the request in writing. Exceptions to the written request requirement may be made by the custodian.
• B. All non-routine requests for public records, including those for electronic mail, must be forwarded immediately to the Superintendent for review prior to the response.
• C. The District has no obligation to create records in response to a request that are not in existence at the time a request is made. It may, however, choose to do so. If, in response to a specific request, the District has performed a manipulation of data so as to generate a record in a form not used by it, a reasonable fee may be charged to the person making the request. Such fee shall not exceed the actual cost of manipulating the data and generating the record in accordance with the request.

Access to Records

• A. All public records shall be open for inspection in the office of the records custodian during regular business hours. Upon written request of the applicant specifying which documents are being requested, the records custodian shall, if reasonable under the circumstances, reply to the request while the person waits. If immediate reply cannot be made, the custodian shall set a date and time when the records will be available for inspection.
• B. Consistent with the Open Records Act, requests for public records must be processed within three (3) business days unless extenuating circumstances exist. A finding that extenuating circumstances exist may be made only by the administrator in charge of the division, building or department possessing the records. If extenuating circumstances exist: 1) within three (3) days of the request first being made, written notice must be given to the one making the request that the response will be delayed; and 2) the time for reply may be extended up to four (4) business days to a total of seven (7) days from the time the request was made.
• C. If the records requested are in the custody and control of the person to whom the records request is made, but are in active use, in storage, or are otherwise not available at the time an applicant asks to examine them, the one to whom the request is made shall inform the one requesting the records of that fact. The applicant may request a written statement confirming this.
• D. If application is made to one who is not in possession or control of the requested records, the applicant shall be notified of this as soon as possible (in writing if requested) and told where and to whom to apply for the records, if known.
• E. If requested by the applicant, reasons for denial of access to public records shall be given in writing, citing the law or regulation under which access is denied.
• F. The public may not be allowed to directly use either its own or the data processing equipment of the School District in inspecting or copying public records. In every instance, the manual or electronic functions necessary to extract, collate, organize, retrieve, copy or otherwise manipulate the information and data necessary to produce the record or allow for its inspection shall be performed by School District personnel.
• G. Whenever a person has the right to inspect a public record, s/he also has the right to a photocopy of such a record upon the payment of any applicable fee. Generally, the applicant may choose between receiving a paper copy of a record and inspecting the record. In some cases, however, the applicant may not have the option of choosing between a copy of the record and inspection of the record, but shall be required to receive a copy. The custodian shall have the discretion to make a decision about the form in which the information contained in the public record will be provided, taking into account any dangers of record alteration and/or obliteration, and the efficient operation of the office involved.
• H. In most cases, data should not be provided verbally with the assurance that it is correct. However, where in the opinion of the custodian, it is necessary to respond verbally, the custodian is authorized to do so.
• I. Some examples of public records open to inspection and copying include:
  1. minutes of meetings of the Board of Education;
  2. resolutions;
  3. finalized agreements;
  4. financial records;
  5. enrollment records; and
  6. correspondence of members of the Board of Education. (Correspondence of members is not open to public inspection where it: a) is "work product"; b) has no demonstrable connection to the exercise of functions required or authorized by law or administrative rule and does not involve the receipt or expenditure of public funds; and c) is a communication from a constituent to a member that clearly implies by its nature or content that the constituent expects that it is confidential or a communication from a member in response to such a communication from a constituent.

Limitations on Access to Records

• A. The Open Records Act governs the circumstances under which the School District must or may deny access to public records. The Open Records Act, and federal law in some cases, requires that some records not be disclosed.
• The following list includes some of the documents as to which access by members of the general public will be restricted. (See also subsection "E" of this Section.) In most cases (except, for example, letters of reference), the person who is the subject of the record, or the parent/guardian of a minor child who is the subject of the record, shall have access to the record.
  1. Student records - (student records are governed primarily by the Federal Family Educational Rights and Privacy Act; see policy JRA/JRC, Student Records - Release of Information on Students, adopted pursuant to this federal law for full details).
  2. Litigation files (also see this section A.3. and C. below).
  3. Communications protected by a legal privilege, including the attorney-client privilege.
  4. Real estate appraisals made on behalf of the District relating to the acquisition of an interest in property, until such time as title to the property has passed to the District, and only in such cases as disclosure would, in the opinion of the records custodian, be contrary to the public interest.
  5. Medical, psychological, sociological or scholastic achievement data relating to individuals. Group scholastic achievement data from which individuals cannot be identified shall be open to the public.
  6. Personnel files. A personnel file shall not be open for public inspection except by the employee, members of the Board of Education and those employees supervising the employee's work.
  7. Performance evaluations of employees and all public records used in preparing the evaluation, except that: a) such documents shall be available to those supervising such employees; and b) certain aspects of the evaluation of the Superintendent may be open to public inspection (see C.R.S. 22-9109).
  8. Letters of reference relating to prospective employees or those who may supply goods or services to the District.
  9. Test questions, scoring keys and other exam data pertaining to the administration of an academic or employment examination where disclosure would, in the opinion of the records custodian be contrary to the public interest.
  10. Confidential data of the following types: commercial data, including trade secrets, financial data, geological data, or geophysical data.
  11. Copyrighted documents except where such access would fall within 'fair use' under the federal copyright law (generally applicable only to photocopies and not access).
  12. Records of investigations of alleged misconduct by students or employees.
  13. Work product of members of the Board of Education or assembled for such members.
  14. Addresses, phone numbers and personal financial information of past or present users of District facilities (except to police officers who show the information is reasonably related to the performance of their duties).
  15.  Application materials submitted by a prospective employee for a position who: a) is not a finalist for the position; and b) asks, at the time of submission of the materials, that the materials remain confidential. "Finalist" means a candidate for an executive position who is either chosen for an interview or who is still being considered for the position twenty-one (21) days prior to making the appointment, whichever comes first; except that, if six (6) or fewer applicants or candidates are competing for the executive position, "finalist" means all applicants or candidates. Letters of reference or medical, psychological, and sociological data concerning any candidate, including a finalist, are not subject to public disclosure.
  16. Other information required by either state or federal law or regulation to be held in confidence.
  17. Where disclosure would be contrary to the order of a court of competent jurisdiction.
• The School District is generally required to disclose the records listed above in response to a subpoena or other order of a court of competent jurisdiction.
• Where a record contains both confidential data and data that is not confidential, the District will make a reasonable effort to delete the confidential data and provide an edited record. Under the Open Records Act, the District is not required to create a new record in response to a records request, but only to supply records already in existence. Where a record contains both confidential data and data that is open to public disclosure, the District will make a reasonable effort to delete the confidential data and provide the remainder, providing that it is not an undue burden to do so.
• Assistance in interpreting the extent of disclosure for any of the items referenced in "Limitations on Access to Records" may be obtained from the Superintendent.
• B. There may be cases where even though a record might otherwise be available for public inspection, in the opinion of the records custodian disclosure of its contents would do substantial injury to the public interest. In such cases, and only with the consent of the Superintendent of Schools, the records custodian may deny access to the public record.
• C. Where the applicant is a party to litigation against the District (or its employees where the suit relates to acts or omissions of employees while on the job), or is acting on behalf of such a party, the Colorado Rules of Civil Procedure, and not this regulation, shall apply to requests for public records. If the records custodian is aware that any documents are involved in litigation, the superintendent shall be contacted before proceeding.

COMPUTER AND E-MAIL RECORDS

• A. Pursuant to Colorado law, in cases involving public records which are the result of computer output other than word processing, the District charges a fee which is based on the actual incremental costs of providing electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system. See Exhibit KDB-1-E, Public Records Fee Schedule, for the fee schedule for the retrieval of such documents. Consistent with federal regulations, no fees may be charged to a parent, guardian or eligible student for searching for or retrieval of student records. However, charges may be assessed for the actual copying (as opposed to searching to retrieval) of such documents.

IV. FEES

Exhibit KDB-1-E establishes the approved fees for production of public records. The records custodian shall have the authority to waive any fee described in exhibit KDB-1E where: a) a person demonstrates that s/he is indigent; b) the record is being provided to another governmental agency, including a school; c) where imposition of the fee is otherwise unreasonable or unwise under the circumstances.

Approved  June 25, 2002

Revised February 13, 2014

LEGAL REFS: Colorado Open Records Act 2472201, et seg.

Family Educational Right and Privacy Act, 20 U.S.C. 1232g

CROSS REF.: JRA/JRC, Student Records/Release of Information on Students

V. Effective date: June 25, 2002