The Douglas County School District has refused to provide some documentation of records requests it received from people who sought the names of teachers absent on Feb. 3 — the day of a controversial sick-out. That includes the name of one person who withdrew their request, and any correspondence between them and the district that might shed light on how the request and withdrawal transpired.
The district also declined to release those employees’ names, telling one record requester that it would violate staff’s medical confidentiality rights.
Community debate erupted following the sick-out, which was held to protest actions by the Douglas County School Board. At least 1,500 employees requested an absence that day, enough that it forced DCSD to cancel classes. In 2016, the Colorado Court of Appeals ruled a teacher's sick leave was not part of their confidential personnel file. But debate on the issue flared again amid DCSD’s sick-out and contentious calls for the list to be made public.
High-profile figures such as radio host and former 18th Judicial District Attorney George Brauchler said employees’ names should be released if requested under the Colorado Open Records Act. Not only was the information legally public record, he said, but parents should be able to confront educators about the choice to protest instead of teaching. The name of people who asked for the information is also public record, he said.
Brauchler said he condemned any abuse of the information, such as harassment of employees who protested, and said providing the names was not the equivalent of doxxing. Doxxing involves the release of personal information, such as a home address.
Such calls to release the names were met with swift pushback from other community members, amid fears the information would be used to retaliate against employees who took part in a community rally on Feb. 3. Releasing the names could create a culture of intimidation, said Kevin DiPasquale, president of the Douglas County Federation teachers union.
The firestorm heated up when DCSD staff who were absent on Feb. 3 received an email from the district stating someone had requested the names of Feb. 3 employee absences, and the district intended to respond to the request by Feb. 16. Employees who received the email provided copies to Colorado Community Media.
On Feb. 16, the Douglas County School Board held an executive session during its special meeting that evening to receive legal advice regarding the release of employees’ names. When the board reconvened in public, President Mike Peterson said the district would not be releasing the list at that time.
A district spokesperson confirmed on Feb. 16 that one request for the Feb. 3 absences was withdrawn.
But according to the CORA log the district publishes online, which lists each record request it receives, Douglas County Schools received a second similar request on Feb. 7 from someone who listed their name as Robert L. Baxter.
Messages left for a Robert L. Baxter by Colorado Community Media were not returned.
Baxter’s request appears to have been denied by the district.
When asked if the district provided Baxter or any other record requesters with the names of employees absent on Feb. 3., a spokeswoman for the district’s legal team provided Colorado Community Media a copy of a statement addressed to Baxter.
The statement read:
“Dear Mr. Baxter,
The District declines to produce the requested records pursuant to C.R.S. 24-72-204(1)(a) because the inspection would be contrary to state statute. Pursuant to C.R.S. 8-13.3-412 (2), ‘Any health or safety information possessed by an employer regarding an employee or employee's family member must be treated as confidential medical records and not disclosed except to the affected employee or with the express permission of the affected employee.’
The District also declines to produce the requested records pursuant to C.R.S. 24-72-204(3)(a)(I) because the inspection of ‘electronic health records, on individual persons’ is prohibited by the Colorado Open Records Act (CORA).’”
The district confirmed on April 12 it has not released any records of staff absences or sick leaves on Feb. 3 in response to record requests seeking that information.
On Feb. 16, Colorado Community Media requested documentation of record requests that sought the list of Feb. 3 absences to gain a fuller picture of how the district handled the inquiries.
The district’s record custodian initially requested an extension to the statutory deadline for fulfilling record requests, asking for up to seven more business days. The district could not fulfill the request in three days without “substantially interfering with our obligations to perform our other public responsibilities,” the custodian said.
On March 3, the district’s records custodian provided a link to the public log of records requests in response to Colorado Community Media’s request. The custodian did not provide any additional documentation and did not answer phone calls from Colorado Community Media regarding its request.
By email and at times communicating through a district spokeswoman, the custodian answered some questions from Colorado Community Media but declined to produce records of withdrawn CORA requests.
The custodian confirmed the district’s log does not reflect withdrawn record requests, including the request for sick-out names that DCSD was slated to fulfill on Feb. 16.
In an emailed statement, the custodian wrote, “In this instance, the person who made the request for the names of staff members who submitted an absence request for February 3, 2022, orally withdrew the request on February 16, 2022. Given that the request was withdrawn, the district does not believe it constitutes a ‘public record’ under CORA, and therefore declines to produce the information requested.”
Colorado Community Media asked in an email for any documentation of the record requests for Feb. 3 absences and not merely the record requests alone. That might include email correspondence, memos, or other writings, Colorado Community Media told DCSD by email.
In response, the custodian requested Colorado Community Media submit another record request.
Colorado Community Media again submitted a record request for any records documenting requests DCSD received seeking the names of Feb. 3 absences. The request was clarified to include all records — including, but not limited to, email correspondence, memos and logs — documenting requests for Feb. 3 employee absences.
The district declined to produce any records beyond the online log and the statement addressed to Baxter.
“The withdrawn CORA request does not appear on the district’s February 2022 CORA log consistent with the district’s practice to remove withdrawn CORA requests from the published log. Furthermore, given that the request was withdrawn, the district does not believe any responsive record(s) constitute a ‘public record’ under CORA,” the custodian said.
In all its requests, Colorado Community Media asked the district to cite in writing which state statutes permit withholding or redacting responsive records, should the district believe it was legally able to do so. The district has not provided a written explanation of the specific portions of the Colorado Open Records Act allowing it to withhold records, and cited district policy.
The custodian did not respond to Colorado Community Media’s request to provide all responsive records defined as “writings” under the Colorado Open Records Act. The law defines a public record as all “writings” maintained or kept by a public agency that memorialize or discuss public business.
Rachael Johnson, an attorney with the Reporters Committee for Freedom of the Press, also placed calls with the district’s records custodian on Colorado Community Media’s behalf. Those calls were not returned.
"Under the CORA, any writing that is 'made, maintained, or kept' by an agency is a public record. This clearly includes agency generated forms that requestors fill out and then submit back to the agency as part of their CORA process," Johnson said in a statement. "Even if that form is later withdrawn by the requestor, it does not negate the fact that it's a public record. That form must still be retained or archived according to state law and made available for inspection."
This story has been updated with comment from Rachael Johnson.
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