DISTRICT COURT, CITY AND COUNTY OF

DENVER, STATE OF COLORADO

1437 Bannock Street, Room 256
Denver, Colorado 80202
(720) 865-8301

PRAIRIE MOUNTAIN PUBLISHING COMPANY,

LLP d/b/a/ DAILY CAMERA

Plaintiff,

v.

THE REGENTS OF THE UNIVERSITY OF

COLORADO

Defendant.

▲COURT USE ONLY▲

Attorneys for Plaintiff:

Robert R. Gunning, #26550 Case No:
Eric Maxfield, #29485
Maxfield Gunning, LLP
1738 Pearl Street, Suite 300
Boulder, Colorado 80302 Division:
(720) 586-8567
Rob@maxfieldgunning.com
Eric@maxfieldgunning.com

COMPLAINT AND APPLICATION FOR AN ORDER TO SHOW CAUSE UNDER

§ 24-72-204(5), C.R.S.

Plaintiff Prairie Mountain Publishing Company, LLP, d/b/a Daily Camera, (“Daily
Camera”), through the undersigned counsel, for its Complaint and Application for Order to Show
Cause, alleges as follows:
 I. Introduction

1. This is an expedited civil action under the Colorado Open Records Act (“CORA”).
Earlier this year, the Daily Camera served records requests on the Defendant the Regents of the
University of Colorado (“Board of Regents”). The requests sought the names and application
materials of the finalists for the University of Colorado President position. The requests were
made consistent with the specific provisions concerning the executive position hiring process in
CORA and Open Meetings Law, recognizing “the final group of applicants or candidates made
public… .” § 24-72-204(3)(a)(XI)(A), C.R.S. (emphasis added). And the requests were made
consistent with the Board of Regents’ statutory obligation that they “shall make public the list of
all finalists…no later than fourteen days prior to appointing or employing one of the finalists to
fill the position.” § 24-6-402(3.5), C.R.S. (emphasis added).

2. In response to the CORA requests, the Board of Regents maintained that there was
only one finalist and declined to produce the names or application materials of the other finalists.
In accordance with § 24-72-204(5)(a), C.R.S., the Daily Camera filed a written notice with the
Board of Regents, and the parties attempted in good faith to resolve this matter without court
involvement. Those efforts did not succeed.

3. Through this action, the Daily Camera seeks an Order directing the Board of
Regents to show cause why its custodian of records should not permit the inspection of the
requested public records. In addition to this equitable relief, the Daily Camera also seeks recovery
of its reasonable attorney fees and court costs under § 24-72-204(5)(b), C.R.S.

4. At its core, this litigation requests the Court to interpret CORA and determine
whether the Daily Camera, and the public, are entitled to the names and application materials of
the other finalists for the University of Colorado President position filled in 2019. The public’s
right to know the identity of the other finalists is vital to ensure transparency and accountability in
the presidential selection process. CORA provides this right. Through this litigation, the Daily
Camera seeks to vindicate this right to shed light on the present and future presidential search
processes.

5. The Daily Camera anticipates that no discovery is necessary or appropriate in this

expedited action, and that the operative facts will likely be stipulated.

6. Further, CORA requires a hearing on this Complaint and Application “at the earliest
practical time,” § 24-72-204(5)(b), C.R.S., and the Daily Camera therefore requests an expedited
setting.
 II. Parties, Jurisdiction and Venue

7. Plaintiff Prairie Mountain Publishing Company, LLP is a Delaware limited liability

partnership with a principal office located at 101 W. Colfax Avenue, Suite 1100, Denver, CO
80302. Plaintiff does business as the Daily Camera.

8. The Daily Camera is a “person” under § 24-72-202(3), C.R.S. and has standing to
bring a claim for access to public records under CORA.

9. Defendant the Regents of the University of Colorado is a body corporate under

Colo. Const. Art. IX, § 12. The Board of Regents is constitutionally and statutorily charged with
the general supervision of the University of Colorado and the exclusive control and direction of
all funds of and appropriations to the University. The Board of Regents consists of nine members
serving staggered six-year terms. § 23-20-102, C.R.S. Its principal office is located at 1800 Grant
Street, Suite 800, Denver, CO 80203.

10. The Board of Regents is the custodian of the public records that are the subject of
this action. The Board of Regents’ custodian of records is located at 1800 Grant Street, Suite 800,
Denver, CO 80203.

11. Jurisdiction is proper in this Court under § 24-72-204(5)(a), C.R.S. Venue is proper
under C.R.C.P. 98(b)(2) and (c)(1) and § 24-72-204(5)(a), C.R.S.

III. General Background and Allegations

12. In July 2018, University of Colorado (CU) President Bruce Benson announced his
retirement, effective July 2019. The Board of Regents thereafter formed a Presidential search
committee, who worked with a private search firm to solicit and identify potential candidates.

13. Over 100 individuals applied for the CU President position. Upon information and
belief, the search committee seriously considered 28 of these applicants, having determined that
each of these applicants met the minimum qualification for the position. The search committee
interviewed these applicants.

14. Following this process, the search committee forwarded the names of 6 applicants
to the Board of Regents. The Board of Regents interviewed the 6 candidates.

15. On April 10, 2019, despite the fact that it had interviewed the 6 candidates who had
emerged from the search committee process, the Board of Regents announced that Mark Kennedy
was the sole finalist for the position of CU President.

16. On May 2, 2019, in executive session, the Board of Regents confirmed Mark
Kennedy as the next CU President.
 17. On May 24, 2019, former Daily Camera reporter Madeline St. Amour submitted a
CORA request to the Board of Regents. This request asked for the “names of CU system
presidential candidates who met the minimum qualifications for the position and were one of the
28 interviewed by the search committee.” The request also sought the “names of CU system
presidential candidates who met the minimum qualifications for the position and were one of the
6 interviewed by the Board of Regents.”

18. CORA imposes on public records custodians a presumptive deadline of three

working days to respond to a CORA request. § 24-72-203(3)(b), C.R.S.

19. The Board of Regents’ custodian of records failed to respond by this statutory
deadline. Ms. St. Amour followed up by email on her unanswered request on June 12, 2019.

20. On June 13, 2019, the Board of Regents’ custodian of records denied the request.
According to the email response, the request was denied “based on sections 24-72-
204(3)(a)(XI)(A) and 24-6-402(3.5), C.R.S.”

21. On July 9, 2019, Ms. St. Amour submitted a second CORA request on behalf of the
Daily Camera. This request sought “application documents of CU system presidential candidates
who met the minimum qualifications for the position and were one of the 28 interviewed by the
search committee.” The request also requested the “application documents of CU system
presidential candidates who met the minimum qualifications for the position and were one of the
6 interviewed by the Board of Regents.”

22. Once again, the Board of Regents failed to timely respond to the CORA request.
Two weeks after the request was served, on July 23, 2019, the Board of Regents denied the request
as to all candidates except for Mark Kennedy. The denial of the other candidates’ application
materials was similarly based on §§ 24-72-204(3)(a)(XI)(A) and 24-6-402(3.5), C.R.S. Mr.
Kennedy’s application packet, which had previously been disclosed, was enclosed with the
response.

23. On August 12, 2019, through undersigned counsel, the Daily Camera submitted a
14-day written notice to the Board of Regents’ custodian of records. This notice was submitted in
accordance with § 24-72-204(5)(a), C.R.S., and provided written notice of the Daily Camera’s
intent to file this Application for an Order to Show Cause. The notice outlined the Daily Camera’s
legal position that the Board of Regents was unlawfully withholding the names and application
materials of the finalists. This notice also requested a meeting to discuss potential resolution of
this matter without court involvement.

24. The Board of Regents’ counsel agreed to meet, and counsel for both parties and
Daily Camera representatives met in person on August 26, 2019 to discuss potential resolution of
the CORA dispute. Through counsel, the Board of Regents also responded in writing to the Daily
Camera’s 14-day notice. At the conclusion of the meeting, the Board of Regents’ counsel
requested time to confer with the Board of Regents regarding these issues and potential resolution.
 25. Upon information and belief, on September 12, 2019, the Board of Regents and its
counsel met in executive session to discuss this issue. Following the meeting, the Board of
Regents’ counsel announced that the Board of Regents’ position remained unchanged, and no offer
of compromise was forthcoming.

IV. Claim for Relief (Application for Order to Show Cause - Violation of CORA)

26. The Daily Camera incorporates by reference all preceding paragraphs as if fully
stated herein.

27. The public policy of Colorado is that all public records shall be open for inspection
by any person at reasonable times. § 24-72-201, C.R.S.

28. A public record is any “writing” that is “made, maintained or kept by . . . any . . .
political subdivision of the state . . . for use in the exercise of functions required or authorized by
law or administrative rule. . .” § 24-72-202(6)(a)(I), C.R.S. The records sought by the Daily
Camera through the CORA requests are public records.

29. Under CORA, any person may request to inspect and/or obtain a copy of a public
record. § 24-72-203(1)(a), C.R.S.

30. Under CORA, a custodian is required to provide access to a public record unless
the inspection is contrary to any state statute or is otherwise exempted from disclosure by one of
the narrow exemptions in section 204(3)(a) of CORA. § 24-72-204(1)(a), C.R.S.

31. CORA provides in pertinent part: “[A]ny person denied the right to inspect any
record covered by this part 2 may apply to the district court of the district wherein the record is
found for an order directing the custodian of such record to show cause why the custodian should
not permit the inspection of such record . . . Unless the court finds that the denial of the right of
inspection was proper, it shall order the custodian to permit such inspection and shall award court
costs and reasonable attorney fees to the prevailing applicant in an amount to be determined by the
court.” § 24-72-204(5), C.R.S.

32. Upon information and belief, the records sought by the Daily Camera are located
at the Board of Regents’ headquarters in Denver, Colorado.

33. In accordance with § 24-72-204(5)(a), C.R.S., the Daily Camera is applying to this
Court for an Order directing the Board of Regents’ custodian of records to show cause why the
custodian should not permit inspection of the records.

34. The Board of Regents has denied the Daily Camera the right to inspect the
requested public records. The Board of Regents’ withholding of the records is based solely on its
interpretation of §§ 24-72-204(3)(a)(XI)(A) and 24-6-402(3.5), C.R.S. In particular, the Board of
Regents maintains that these provisions authorize it to designate only one CU President finalist,
and to withhold the names and application materials of all other candidates, including the other
five individuals interviewed by the Board of Regents.

35. Section 24-72-204(3)(a)(XI)(A), C.R.S. excepts from disclosure “[r]ecords

submitted by or on behalf of an applicant or candidate for an executive position . . . who is not a
finalist.” Under this provision, the records submitted by finalists for the CU President position are
subject to disclosure.

36. The term “finalist” is statutorily defined as an applicant “who is a member of the
final group of applicants or candidates made public pursuant to section 24-6-402(3.5), C.R.S.” §
24-72-204(3)(a)(XI)(A), C.R.S. (emphasis added). By its express terms, this provision
contemplates more than one “finalist.”

37. Section 24-6-402(3.5), C.R.S. provides that the university shall “make public the
list of all finalists under consideration for the position of chief executive officer no later than
fourteen days prior to appointing or employing one of the finalists to fill the position.” (emphasis
added). This provision also expressly contemplates more than one “finalist.”

38. Despite having conducted a second interview of 6 candidates (out of over 100
applicants) who emerged through the search committee process, the Board of Regents announced
only 1 “finalist”, and its response to the Daily Camera’s CORA requests was similarly based on
this narrow interpretation of the statutory provisions. The Board of Regents’ position and statutory
interpretation conflict with the plain language of the statutory provisions and the spirit of CORA
and the Open Meetings Law. Further, the interpretation is contrary to the legislative history of the
key provisions, including but not limited to HB 94-1234 (concerning an earlier version) and SB
97-059.

39. The Board of Regents also violated CORA by failing to timely respond to either
CORA request under § 24-72-203(3)(b), C.R.S.

40. The Daily Camera has met all conditions precedent to filing this CORA action,
including the 14-day notice requirements of § 24-72-204(5)(a), C.R.S.

41. The Daily Camera has established a prima facie basis to believe that the requested
writings, and in particular the list of names and application materials of the 6 individuals who
advanced to the final round before the Board of Regents, are “public records” under CORA, and
that the Daily Camera has been denied access to public records by the Board of Regents.

42. Because the Board of Regents has denied a valid request for inspection of public
records, the Daily Camera is entitled to, and this Court should enter, an Order directing the Board
of Regents to produce the requested documents. § 24-72-204(5), C.R.S.
 43. The Daily Camera is entitled to an award of its reasonable attorney fees and costs
to enforce its right of public access to these public records. § 24-72-204(5)(a), C.R.S.

44. Under § 24-72-204(5), C.R.S., upon the filing of an Application, the Court must
schedule a hearing on the Order to Show Cause at the “earliest time practical.”

45. The proposed form of an Order calling for a show cause hearing is filed herewith.

V. Prayer for Relief

WHEREFORE, the Daily Camera respectfully prays for the following relief and
judgment:

1. An Order directing the Board of Regents to show cause why it should not allow
inspection of the requested records as described in this Complaint and Application for
an Order to Show Cause;
2. An Order directing the Board of Regents to provide to the Court, for in camera review,
the closed records, including the application materials from the finalists in addition to
the single successful applicant selected in the recent hiring process, and the list of
finalists in addition to the single successful applicant selected in the process, so that the
Court may determine if the documents were appropriately withheld or if they are public
records required to be opened for public inspection;
3. Conduct a hearing pursuant to such Order at the earliest practical time, at which time
the Court may make the Order to Show cause absolute;
4. An Order directing the Board of Regents to provide access to and/or copies of withheld
and redacted public records requested;
5. A declaratory judgment finding that the requested public records are subject to
disclosure and not exempt under CORA, and that they are subject to public access
pursuant to the Daily Camera’s valid requests under CORA;
6. An Order awarding the Daily Camera recovery of its reasonable attorney fees and costs
under § 24-72-204(5)(a), C.R.S.; and
7. Any other and further relief as the Court deems proper and just.
 Respectfully submitted this 30th day of September, 2019.

/s/Robert R. Gunning
Robert R. Gunning, #26550
Eric Maxfield, #29485
MAXFIELD GUNNING, LLP
Attorneys for Plaintiff

Plaintiff’s Address

Boulder Daily Camera

2500 55th Street, Suite 210
Boulder, CO 80301

This Complaint and Application for an Order to Show Cause was filed with the Court through
the electronic filing procedures under C.R.C.P. 121(c), § 1-26.

As required by these rules, the original signed copy of this pleading is on file with Maxfield
Gunning, LLP