Mountain Publishing Co. LLP d/b/a Daily Camera v. Regents of the University of Colorado

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 4, 2021

                                

No. 20CA0691, Prairie Mountain Publishing Co. LLP d/b/a
Daily Camera v. Regents of the University of Colorado —
Government — Public Records — Colorado Open Records Act —
Colorado Sunshine Act — Open Meetings Law

     A division of the court of appeals holds that a “finalist” under

the plain language of the Colorado Open Records Act (CORA) is a

person who is disclosed by the appointing entity as a finalist. The

division therefore reverses the district court’s judgment that would

have required the Regents of the University of Colorado to disclose

the names and interview materials of all the candidates that they

interviewed.

     The dissent would hold that CORA requires appointing entities

to disclose multiple finalists. The dissent would therefore affirm the

district court’s judgment.
COLORADO COURT OF APPEALS                                         

Court of Appeals No. 20CA0691
City and County of Denver District Court No. 19CV33759
Honorable A. Bruce Jones, Judge


Prairie Mountain Publishing Company, LLP, d/b/a Daily Camera,

Plaintiff-Appellee,

v.

Regents of the University of Colorado,

Defendant-Appellant.


                      JUDGMENT AND ORDER REVERSED

                                   Division V
                          Opinion by JUDGE BERGER
                               Vogt*, J., concurs
                             J. Jones, J., dissents

                           Announced March 4, 2021


Maxfield Gunning, LLP, Robert R. Gunning, Eric Maxfield, Boulder, Colorado,
for Plaintiff-Appellee

Philip J. Weiser, Attorney General, Michael Kotlarczyk, Assistant Attorney
General, Skippere Spear, Senior Assistant Attorney General, Denver, Colorado,
for Defendant-Appellant

Philip J. Weiser, Attorney General, Julie C. Tolleson, First Assistant Attorney
General, Isabel J. Broer, Assistant Attorney General, Denver, Colorado, for
Amicus Curiae Colorado Higher Education Institutions

Baker & Hostetler LLP, Marc D. Flink, Denver, Colorado; Killmer, Lane, &
Newman, LLP, Thomas B. Kelley, Denver, Colorado, for Amici Curiae Colorado
Freedom of Information Coalition, Joseph L. Brechner Center for Freedom of
Information, National Freedom of Information Coalition, News Leaders
Association, Society of Professional Journalists, Colorado Politics, Colorado SPJ
Pro Chapter, Colorado Press Association, Reporters Committee for Freedom of
the Press, Colorado Broadcasters Association, Denver Post, Colorado Springs
Gazette, Colorado News Collaborative and Colorado Sun


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1    This case arises under the Colorado Open Records Act (CORA)

 and the Open Meetings Law (OML). Prairie Mountain Publishing

 Company, LLP, d/b/a Daily Camera requested documents

 regarding applicants for the presidency of the University of Colorado

 (CU). CU refused the requests, and the Daily Camera sued. The

 district court agreed with the Daily Camera and ordered disclosure

 of the requested documents. Because we conclude the district

 court exceeded its authority in rewriting the applicable statutes, we

 reverse.

                           I.   Background

¶2    When CU President Bruce Benson announced his retirement,

 the CU Board of Regents (Regents) adopted procedures to select his

 successor. The Regents appointed an internal search committee

 and hired an outside search firm. Initially, the search firm received

 more than one hundred referrals or applications for the position.

 These candidates were winnowed down at various stages. The

 search firm narrowed this list to twenty-seven candidates, and the

 search committee decided to interview eleven, eventually

 interviewing only ten after one withdrew. After those interviews, the

 search committee reduced the remaining applicants to six, all of


                                   1
 whom were interviewed by the Regents. After those interviews, the

 Regents publicly announced that there was only one finalist —

 Mark Kennedy.

¶3    Mr. Kennedy then went through an extensive public vetting

 process, including personal meetings with various constituent

 groups at all of CU’s campuses. During this vetting process, there

 was considerable criticism heaped on the Regents regarding both

 the search process itself and the Regents’ apparent selection of Mr.

 Kennedy. Ultimately, the Regents voted 5-4 to appoint Mr.

 Kennedy.

¶4    After Mr. Kennedy’s appointment, the Daily Camera requested

 under CORA and the OML the names and application documents of

 the candidates selected by the search committee and those

 interviewed by the Regents.1 When CU declined to produce the




 1 The names of the candidates selected by the search committee
 were leaked to the press, even though that information was
 confidential. Ultimately, CU released documents relating to five of
 the six persons interviewed by the Regents (including Mr. Kennedy).
 The dissent correctly observes that this case narrowly escapes
 dismissal on mootness grounds.


                                   2
 records (except those regarding Mr. Kennedy), the Daily Camera

 sued in Denver District Court.2

¶5    The court ruled in favor of the Daily Camera, concluding that

 the six candidates interviewed by the Regents were the finalists.

¶6    Proceedings before the Denver District Court confirmed that,

 at least with respect to appointment of officers of public entities

 (which all parties concede include CU and its Regents), both CORA

 and the OML are seriously flawed. Despite many legislative

 attempts over the years to reconcile competing public policy

 interests, the statutes do a very poor job of precisely designating

 which records regarding which people are subject to mandatory

 disclosure.

¶7    Faced with these confusing statutes, the district court did a

 yeoman’s job attempting to make sense of and bring clarity to them.

 We conclude, however, that the district court’s efforts were, in the

 end, outside the proper role of our courts.

¶8    It is beyond argument that the district court’s construction of

 CORA and the OML better advance the sunshine and open


 2 CU’s executive offices are in Denver, making the district court for
 the second judicial district a proper forum for the CORA proceeding.

                                    3
 government principles that underlie those statutes. The statutes,

 as construed by the district court are “better” in that sense,

 although that value judgment may well depend on one’s point of

 view. But making statutes clearer, easier to administer, or “better”

 are not proper roles of this state’s courts. That is the job of the

 General Assembly. Dep’t of Transp. v. City of Idaho Springs, 

 (Colo. App. 2008) (“If a statute gives rise to

 undesirable results, the legislature must determine the remedy.

 Courts may not rewrite statutes to improve them.”) (citations

 omitted).

¶9    Unlike a situation in which a court is tasked with interpreting

 an ambiguous statute to comport with underlying constitutional

 commands, there is no such baseline here. The rights involved here

 are entirely statutory, and the power of the General Assembly to

 establish, limit, and clarify those rights is plenary. It is in that

 context that we review the district court’s judgment.




                                     4
                               II.   Analysis

                A.   Standard of Review and Preservation

¶ 10   This case presents a question of statutory interpretation,

  which we review de novo.3 Oakwood Holdings, LLC v. Mortg. Invs.

  Enters. LLC, 

. Courts “review de novo questions of

  law concerning the correct construction and application of CORA.”

  Harris v. Denver Post Corp., 

 (Colo. 2005).

  “Likewise, interpreting the OML presents a question of law that we

  review de novo.” Colo. Off-Highway Vehicle Coal. v. Colo. Bd. of

  Parks & Outdoor Rec., 

.

¶ 11   The issue of whether CORA and the OML require the

  requested disclosure was preserved for appeal.

       B.    The Plain Language of the Statutes is Unambiguous

¶ 12   The overriding goal of statutory construction is to effectuate

  the legislature’s intent. Dep’t of Revenue v. Agilent Techs., Inc.,



  3 To the extent that CU argued in the district court that its
  interpretation of CORA or the OML deserved deference, it has not
  made that argument on appeal. Arguments not advanced on appeal
  are generally deemed waived. Moody v. People, 

  (Colo. 2007). In any event, CU is not an agency or institution
  charged with enforcing CORA or the OML, and thus we would not,
  in any event, defer to its interpretation. See, e.g., Huddleston v.
  Grand Cnty. Bd. of Equalization, 

 (Colo. 1996).

                                     5
  

. In doing so, courts “look first to the statute’s

  language, giving words and phrases their plain and ordinary

  meanings.” Bd. of Cnty. Comm’rs v. Dep’t of Pub. Health & Env’t,

  

 (cert. granted Sept. 28, 2020). This requires

  “reading applicable statutory provisions as a whole in order to

  accord consistent, harmonious, and sensible effect to all their

  parts.” People in Interest of W.P., 

. However,

  when the plain language is unambiguous, we look no further. 

¶ 13   The parties agree that disclosure is required only with respect

  to finalists. Indeed, CORA prohibits CU and other state entities

  from disclosing any “[r]ecords submitted by or on behalf of an

  applicant or candidate for an executive position . . . who is not a

  finalist.” § 24-72-204(3)(a)(XI)(A), C.R.S. 2020.

¶ 14   This is the question before us: Who is a finalist? CORA

  defines a “finalist” as

             an applicant or candidate for an executive
             position as the chief executive officer of a state
             agency, institution, or political subdivision or
             agency thereof who is a member of the final
             group of applicants or candidates made public
             pursuant to section 24-6-402(3.5), and if only
             three or fewer applicants or candidates for the
             chief executive officer position possess the
             minimum qualifications for the position, said


                                     6
            applicants or candidates shall be considered
            finalists.

  Id. (emphasis added).

¶ 15   By the statute’s plain language, a “finalist” is a person who is

  disclosed by the appointing entity as a finalist — who is “made

  public.” Id.

¶ 16   Unlike earlier versions of CORA, which were abrogated by the

  General Assembly, this definition of a “finalist” is confusing and

  perhaps circular. The district court acknowledged this, saying that

  it made no sense to allow the appointing entity to structure its

  appointment process to require disclosure of only the single person

  the entity intends to appoint. Such a process, according to the

  district court and the Daily Camera, violates the open records and

  open meetings principles underlying the statutes before us.

¶ 17   That may be true, but we hold this to be insufficient for us to

  step in and write what some may consider to be better statutes

  more attuned to concepts of open government. “Courts may not

  rewrite statutes to improve them.” City of Idaho Springs, 

.




                                    7
¶ 18   The bottom line is that it is not impossible to enforce the

  statutes as written. (If it were, principles regarding construction of

  statutes by courts might come into play.) Doing so may or may not

  provide the level of open records that many think essential to good

  government. But that is not the test. Instead, we hold that the

  district court overstepped its bounds in rewriting CORA to provide

  that the Regents had a mandatory legal duty to disclose the records

  of the six interviewees.

¶ 19   The problems with the district court’s construction in this

  respect are several. First, how does a court determine who the

  finalists are? That is, even if we were to agree with the district

  court’s interpretation that the plain language requires the

  disclosure of multiple finalists when more than three applicants

  possess the minimum qualifications, what judicially manageable

  standards exist to determine who the finalists are? Are they the

  large group of persons vetted by the outside search firm, or the

  smaller group identified by the internal search committee? Or are

  the finalists only those persons that were interviewed by the search




                                     8
  committee?4 Is a person a finalist because he or she was

  interviewed by the Regents, even when the Regents, as a result of

  those interviews, determine that one or more of the interviewees

  were unsuitable for the job? Or are finalists limited to those

  persons that, after the interviews, are actually considered by the

  appointing entity for appointment, even when there is only one such

  person?

¶ 20   In answering these questions, the district court concluded that

  the finalists were those persons interviewed by the Regents, not the

  larger groups. While that choice is reasonable — indeed, that is

  precisely the choice made by the General Assembly in a prior, but

  now abrogated, version of CORA — statutory language dictating

  that choice is absent from the current versions of the statutes.

  Compare § 24-72-204(3)(a)(XI)(A), C.R.S. 2020, with § 24-72-

  204(3)(a)(XI)(A), C.R.S. 1994, and Ch. 286, sec. 3, § 24-72-

  204(3)(a)(XI)(A), 

. Instead, that choice



  4In fact, the Daily Camera requested the records of “the 28
  candidates interviewed by the search committee.” It is immaterial
  whether this request was in reference to the twenty-seven
  candidates that were vetted by the search committee, or the ten
  candidates actually interviewed by the committee.

                                    9
  reflects a policy decision that is for the General Assembly, not the

  courts.

¶ 21   The district court supported its interpretation with the

  dictionary definition of a “finalist” as one who competes in the “final

  round of competition,” and construed that to mean the interviews

  with the Regents. But the General Assembly itself defined “finalist,”

  and its statutory definition is not the same as the dictionary

  definition. “[W]hen the legislature defines a term in a statute, that

  definition governs.” Farmers Ins. Exch. v. Bill Boom Inc., 

 (Colo. 1998). The current statute does not define “finalist”

  in terms of who receives an interview or rounds of competition.

¶ 22   Instead, the current provision defines a “finalist” as a person

  “made public pursuant to section 24-6-402(3.5).” § 24-72-

  204(3)(a)(XI)(A). There is no statutory requirement that an

  institution name a minimum number of finalists, unless three or

  fewer applicants “possess the minimum qualifications.” Id. In that

  situation, all qualified applicants are finalists. Everyone agrees that

  this case does not fall into this statutory exception. It is

  undisputed that more than three applicants possessed the

  minimum qualifications for CU president. Accordingly, by statute,


                                     10
  only a candidate who was a “member of the final group of

  applicants or candidates made public pursuant to section 24-6-

  402(3.5)” of the OML is a finalist. Id.

¶ 23    Neither does section 24-6-402(3.5), C.R.S. 2020, of the OML

  specify the number of finalists that must be named. It states:

             The state or local public body 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. No offer of appointment or
             employment shall be made prior to this public
             notice. Records submitted by or on behalf of a
             finalist for such position shall be subject to the
             provisions of section 24-72-204(3)(a)(XI). As
             used in this subsection (3.5), “finalist” shall
             have the same meaning as in section 24-72-
             204(3)(a)(XI).

  Id.

¶ 24    Based on these statutory provisions, because Mr. Kennedy

  was the only individual “made public pursuant to section 24-6-

  402(3.5),” § 24-72-204(3)(a)(XI)(A), we conclude that CU acted

  within its rights to treat him as the sole finalist.

¶ 25    The General Assembly could have said, but did not, that there

  must be multiple finalists. “Where the legislature could have

  chosen to restrict the application of a statute, but chose not to, we


                                     11
  do not read additional restrictions into the statute.” Springer v. City

  & Cnty. of Denver, 

 (Colo. 2000). And we will not

  second-guess the policy preferences of the legislature. Farmers Ins.

  Exch., 

.

¶ 26   The district court also pointed to the words “member” and

  “list” and their dictionary definitions as evidence that the General

  Assembly intended that there be more than one finalist. These

  words certainly permit a state entity to name multiple finalists. But

  these words do not require multiple finalists. While the words

  “member” and “list” can refer to multiple components they can also

  refer to single components, like single-member LLCs, or a list

  containing a single item. See Sedgwick Props. Dev. Corp. v. Hinds,

  

.

¶ 27   Although “group” usually denotes multiple individuals, we do

  not think that term alone dictates rewriting the statute in the

  manner done by the district court. We also point out that section

  2-4-102, C.R.S. 2020, which governs construction of statutes,

  provides that “[t]he singular includes the plural, and the plural

  includes the singular.”




                                    12
¶ 28   As noted, under a prior version of CORA, both the question

  and answer were simple: disclosure was required for all finalists,

  and anyone interviewed by the appointing entity was a finalist.

  § 24-72-204(3)(a)(XI)(A), C.R.S. 1994. That is what the district

  court held here, but that provision of CORA no longer exists. Ch.

  286, sec. 3, § 24-72-204(3)(a)(XI)(A), 

.

  When the General Assembly amends a statute there is a

  presumption that it “intended to change the law.” Union Pac. R.R.

  Co. v. Martin, 

 (Colo. 2009).

¶ 29   We fully acknowledge that, as written and as we apply the

  statutes, both CORA and the OML are subject to abuse by

  appointing entities because they can structure their appointment

  process to limit applicant disclosure to only one finalist. Many will

  argue, more than plausibly, that such a structure is inimical to

  principles of open government. And they might be right. But again,

  absent underlying constitutional constraints, which do not exist

  here, that is for the General Assembly to address, not the courts.

  City of Idaho Springs, 

; People v. Ramirez, 

 (“While the result mandated by the statutory language




                                    13
  likely is undesirable to almost everyone, that does not give us a

  license to improve or rewrite the statute.”).

¶ 30   The Daily Camera also points out, as did the district court,

  that when there are three or fewer qualified applicants, CORA

  requires disclosure of all of those applicants. If that is the law, they

  say, how does it make sense that when there are more than three

  qualified applicants, the appointing entity can designate only one

  finalist? While this result may make little sense, it does not reach

  the high bar of absurdity. “[T]he alleged absurdity must surmount

  a high bar to be truly absurd.” Brett M. Kavanaugh, Fixing

  Statutory Interpretation, 

, 2156-57 (2016)

  (reviewing Robert A. Katzmann, Judging Statutes (2014)).

¶ 31   Under the plain language of the statute, there is no minimum

  number of finalists if there are more than three minimally qualified

  applicants. This construction incentivizes hiring institutions to

  conduct broad, thorough searches of qualified candidates, at least

  preliminarily. While we have no idea if this is what the legislature

  intended — and we take no position on whether this is the right

  policy choice — it is a plausible policy choice such that our

  construction is not absurd. Had the General Assembly intended


                                     14
  that a minimum number of finalists be disclosed when more than

  three applicants possessed the minimum qualifications, it could

  have, and presumably would have, said so. But it did not.

¶ 32   In conclusion, the plain language of both CORA and the OML

  permitted the Regents to do exactly what they did. Whether that is

  good policy or good government is not for us to decide. Accordingly,

  we reverse the judgment of the district court.

                      C.   Attorney Fees and Costs

¶ 33   The Daily Camera requests recovery of its attorney fees and

  costs on appeal under C.A.R. 39.1 and section 24-72-204(5)(b),

  C.R.S. 2020.

¶ 34   Section 24-72-204(5)(b) provides, in part, that “[u]nless the

  court finds that the denial of the right of inspection was proper, it

  shall . . . award court costs and reasonable attorney fees to the

  prevailing applicant in an amount to be determined by the court.”

¶ 35   Because we hold that CU’s refusal to disclose the records

  sought by the Daily Camera was permissible under the plain

  language of CORA and the OML, we deny the Daily Camera’s

  request for attorney fees and costs on appeal.




                                    15
¶ 36   We also reverse the district court’s order granting attorney fees

  and costs to the Daily Camera. “[W]hen an underlying judgment is

  reversed, an award that is dependent on that judgment for its

  validity is also necessarily reversed and becomes a nullity.”

  Bainbridge, Inc. v. Douglas Cnty. Bd. of Comm’rs, 

  (Colo. App. 2002).

                            III.   Conclusion

¶ 37   The district court’s judgment as well as its order awarding

  attorney fees and costs are reversed.

       JUDGE VOGT concurs.

       JUDGE J. JONES dissents.




                                    16
       JUDGE J. JONES, dissenting

¶ 38   This is a difficult case — made so because the relevant

  portions of the Colorado Open Records Act (CORA) and the Open

  Meetings Law (OML) are, in some respects, less than clear.

  Certainly the relevant provisions — those relating to who is a

  “finalist” who must be disclosed by an appointing state entity —

  could stand some clarifying revision, and I join the majority’s call

  for the General Assembly to amend them so that the expenditure of

  time and resources relating to disputes such as this can become a

  thing of the past.

¶ 39   The majority holds that under these statutes, a “finalist” for a

  position is whomever the appointing entity deigns to label a finalist,

  and if that is a single individual, so be it. Indeed, the majority

  holds that this is the unambiguous meaning of the relevant

  statutes. I respectfully don’t agree. As I see it, the relevant statutes

  — section 24-72-204(3)(a)(XI)(A), C.R.S. 2020, of CORA, and section

  24-6-402(3.5), C.R.S. 2020, of the OML — unambiguously

  contemplate that, unless there is only one applicant for a position,

  there will always be more than one “finalist.” Determining how

  many finalists there are in a given case is where things get murky.


                                     17
  The district court ruled that under the facts of this case the six

  applicants who interviewed with the Board of Regents (Regents)

  were the finalists for University of Colorado (CU) president. That

  seems to me a reasonable application of CORA and OML.

  Therefore, I would affirm the district court’s judgment and its order

  awarding attorney fees and costs to the Daily Camera.

                                   I.    Facts

¶ 40      A search firm hired by the Regents identified more than one

  hundred applicants for the job. In its judgment, twenty-seven of

  those applicants met the qualifications for the position. The

  Regents’ search committee (which didn’t comprise the entire board)

  interviewed ten of those applicants. It then sent the names of six of

  those applicants to the Regents. The Regents interviewed those six

  applicants. They then voted unanimously to name Mark Kennedy

  as the sole “finalist” pursuant to University of Colorado Board of

  Regents, Regent Policy 3.E (rev. Sept. 2017),

  https://perma.cc/KQ4T-7TS7,1 and they passed a resolution

  stating as follows:


  1   That policy says a “finalist” is


                                         18
            Resolved that the Board of Regents announce
            Mark R. Kennedy as a finalist for the
            presidency of the University of Colorado. The
            Board of Regents welcomes comments on Mr.
            Kennedy’s candidacy and shall not take any
            action to appoint or employ Mr. Kennedy for at
            least fourteen days from the date of this
            resolution.

¶ 41   Mr. Kennedy appeared at open fora at all four CU campuses

  and the system administration offices. Individuals commented on

  Mr. Kennedy on a CU website created for that purpose. A little

  more than three weeks after the Regents named Mr. Kennedy a

  finalist, they voted 5-4 to appoint him to the CU presidency.

¶ 42   The Daily Camera submitted a CORA request to CU for the

  names and application documents of the twenty-seven applicants

  whom the search committee had determined met the qualifications



            [a] candidate who has agreed to be advanced
            for final consideration and potential
            appointment for the position of president or
            chancellor. A person who is named as a
            finalist shall be named in accordance with the
            requirements of [the OML] C.R.S. 24-6-
            402(3.5) and records pertaining to that person
            shall be available for public inspection as
            allowed by [CORA] C.R.S. 24-72-
            204[(3)(a)](XI)(A-B).

  Univ. of Colo. Bd. of Regents, Regent Policy 3.C.2 (rev. Nov. 2020),
  https://perma.cc/KQ4T-7TS7.

                                    19
  for the job and the six applicants the Regents had interviewed. The

  Regents declined to provide the requested information for any

  applicant other than Mr. Kennedy.

¶ 43   The Daily Camera sued under CORA and the OML. The

  district court ultimately ruled that the six applicants the Regents

  had interviewed were finalists, and it ordered CU to produce the

  requested information for those individuals. After someone publicly

  disclosed the identities of four of the other five persons interviewed,

  CU produced the materials relating to those four and Mr. Kennedy.2

                       II.   The Relevant Statutes

¶ 44   Section 24-72-203(1)(a), C.R.S. 2020, of CORA creates a

  general rule that “[a]ll public records shall be open for inspection by

  any person at reasonable times, except as provided in this part 2 or

  as otherwise provided by law . . . .”3 One exception is at issue in

  this case — that for “[r]ecords submitted by or on behalf of an

  applicant or candidate for an executive position as defined in




  2 Because one interviewed person hasn’t been publicly identified,
  this case narrowly escapes dismissal for mootness.
  3 “Public records” is defined in section 24-27-202(6), C.R.S. 2020.

  There is no dispute that all the documents the Daily Camera seeks
  are public records.

                                    20
  section 24-72-202(1.3)[, C.R.S. 2020,] who is not a finalist.” § 24-

  72-204(3)(a)(XI)(A). The position of president of CU is an executive

  position as defined in section 24-72-202(1.3).

¶ 45   For purposes of this exception,

             “finalist” means an applicant or candidate for
             an executive position as the chief executive
             officer of a state agency, institution, or political
             subdivision or agency thereof who is a member
             of the final group of applicants or candidates
             made public pursuant to section 24-6-402(3.5),
             and if only three or fewer applicants or
             candidates for the chief executive officer
             position possess the minimum qualifications for
             the position, said applicants or candidates shall
             be considered finalists.

  § 24-72-204(3)(a)(XI)(A) (emphasis added).

¶ 46   Section 24-6-402(3.5) is part of the OML. It directs the state

  body to 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.” Id. (emphasis added). It doesn’t separately define

  “finalist”; instead, it says that for its purposes “‘finalist’ shall have

  the same meaning as in section 24-72-204(3)(a)(XI),” the definition

  for the relevant exception in CORA. Id.




                                      21
¶ 47   Ultimately, then, the meaning of “finalist” for purposes of both

  CORA and the OML turns on the meaning of the above-highlighted

  portions of section 24-72-204(3)(a)(XI)(A), though, as discussed

  below, sections 24-6-402(3.5) and 24-72-203(1)(a) have something

  to say about the matter.

                         III.   Standard of Review

¶ 48   Because this case turns on the interpretation of CORA and the

  OML, we review de novo. Denver Publ’g Co. v. Bd. of Cnty. Comm’rs,

  

 (Colo. 2005) (CORA); Bd. of Cnty. Comm’rs v.

  Costilla Cnty. Conservancy Dist., 

 (Colo. 2004)

  (the OML).4

                IV.   Principles of Statutory Interpretation

¶ 49   To achieve our ultimate goal of determining and giving effect to

  the General Assembly’s intent, we begin by attributing to the words

  and phrases used in the statute their plain and ordinary meanings.

  Hassler v. Account Brokers of Larimer Cnty., Inc., 

;

  Battle N., LLC v. Sensible Hous. Co., 

. But we



  4 I agree with the majority that since CU isn’t an agency tasked with
  implementing CORA or the OML — but is only an institution
  subject to those laws — we don’t owe any deference to its
  interpretation of the relevant statutes.

                                     22
  don’t consider words and phrases in isolation; rather, we consider

  them “in context — both in the context of the statute of which the

  words or phrases are a part and in the context of any

  comprehensive statutory scheme of which the statute is a part.”

  People v. Berry, 

, aff’d, 

; see

  Jefferson Cnty. Bd. of Equalization v. Gerganoff, 

  (Colo. 2010). At the same time, we strive to give consistent,

  harmonious, and sensible meaning to all of a statute’s language.

  And we must avoid any interpretation that would lead to an illogical

  or absurd result. Schaden v. DIA Brewing Co., LLC, 

; Ferguson v. Spalding Rehab., LLC, 

.

  Indeed, the General Assembly’s manifest intent must prevail over a

  literal meaning of the statute if that literal meaning would lead to

  an absurd result. Henisse v. First Transit, Inc., 

  (Colo. 2011); Battle N., ¶ 30.

¶ 50   If, after applying these principles, we determine that the

  statutory words and phrases are unambiguous, we enforce them as

  written. Denver Post Corp. v. Ritter, 

 (Colo.

  2011). But it isn’t always so easy. Sometimes application of these

  principles doesn’t yield a clear meaning; sometimes the statutory


                                    23
  language is ambiguous — that is, susceptible of more than one

  reasonable interpretation. When that is the case — and only when

  that is the case — we may look to other rules of statutory

  interpretation to resolve the ambiguity. Berry, ¶¶ 13-14; see § 2-4-

  203, C.R.S. 2020. There are many such rules, and which ones

  apply in a given case will vary. Id. at ¶ 14.

¶ 51   But given CORA’s broad, general policy favoring public

  disclosure of public records, we are also guided by two other,

  related principles. First, we must narrowly construe CORA’s

  exceptions. City of Westminster v. Dogan Constr. Co., Inc., 

 (Colo. 1997); City of Fort Morgan v. E. Colo. Publ’g Co., 

 (Colo. App. 2010).5 And second, the party claiming

  that an exception applies has the burden of showing that the

  documents in question fall within the claimed exception. Shook v.

  Pitkin Cnty. Bd. of Cnty. Comm’rs, 

, ¶ 6; City of Fort




  5 In challenging this principle, the Regents cite to Benefield v.
  Colorado Republican Party, 

. But that citation is
  to a dissent. The Regents didn’t acknowledge that in their opening
  brief or even in their reply brief after the Daily Camera’s answer
  brief noted it.


                                    24
  Morgan, 

; Zubeck v. El Paso Cnty. Ret. Plan, 

 (Colo. App. 1998).6

                               V.   Analysis

¶ 52   The majority quotes section 24-77-204(3)(a)(XI)(A) and

  immediately concludes, without intervening analysis, that “[b]y the

  statute’s plain language, a ‘finalist’ is a person who is disclosed by

  the appointing entity as a finalist — who is ‘made public.’” Supra at

  ¶ 15. It then notes that “this definition of ‘finalist’ is confusing and

  perhaps circular.” Supra at ¶ 16. And later in the opinion, the

  majority observes that the statute requires the naming of all

  applicants when there are three or fewer applicants, and that it

  therefore makes “little sense” that an appointing entity can

  designate one finalist when there are more than three applicants.

  Supra at ¶ 30. Nonetheless, the majority holds that the “confusing




  6 We must also interpret the OML broadly to further its intent to
  give citizens a greater opportunity to become fully informed on
  issues of public importance. Bd. of Cnty. Comm’rs v. Costilla Cnty.
  Conservancy Dist., 

 (Colo. 2004); Cole v. State,
  

 (Colo. 1983). And, as with CORA, we must
  strictly construe exceptions to the OML’s requirement of public
  access to meetings at which the public’s business is discussed.
  Gumina v. City of Sterling, 

 (Colo. App. 2004).


                                     25
  and perhaps circular” definition of “finalist” that it adopts — that is,

  a finalist is whomever the appointing entity says is a finalist — is

  the definition that it must enforce even though it doesn’t make

  sense. Supra at ¶¶ 16, 18, 30. I can’t agree.7

¶ 53   This interpretation runs afoul of several basic principles of

  statutory construction. First, it contravenes the principle that we

  must interpret a statute as a whole to give it “sensible” effect.

  Schaden, ¶ 32; Ferguson, ¶ 10. Adopting a construction that the

  majority concedes doesn’t make sense can’t be squared with that

  principle.

¶ 54   Second, even if the majority were correct that a literal

  construction of the statute leads to its interpretation of the meaning

  of “finalist” (a conclusion with which I don’t agree, as explained



  7 The district court relied heavily on the commonly understood
  meaning of “finalist.” Like the majority, I don’t go there because the
  term is defined in the statute. But I do observe that the commonly
  understood meaning of that term undercuts the majority’s
  interpretation. See Webster’s Third New International Dictionary
  851 (2002) (a “finalist” is “any of the contestants who meet in the
  final round of a competition”); see also Nationwide Mut. Ins. Co. v.
  Darden, 

 (1992) (when faced with a statutory
  definition of a term that is essentially circular and unhelpful, a
  court should assume the legislature intended the accumulated
  settled meaning under the common law).

                                     26
  below), that interpretation shouldn’t be adopted because it leads to

  an absurd result. See Henisse, 

 (the General

  Assembly’s intent must prevail over a literal meaning that would

  lead to an absurd result). It is absurd because, as the majority

  recognizes, it allows for less disclosure when there are more than

  three applicants than when there are three or fewer applicants (a

  result which, as noted, the majority says doesn’t make sense). And

  it leads to an absurd result because it allows each appointing entity

  unfettered power to determine who is a finalist. Different

  appointing entities can take different approaches and can

  manipulate their procedures to shield information from disclosure

  in spite of the policies served by CORA and the OML. In other

  words, under the majority’s interpretation, “finalist” really has no

  meaning at all — it’s just whatever an appointing entity says it is.

¶ 55   Third, the majority fails to read the statutory provisions as a

  whole and in context. The majority simply skips over the phrase

  “who is a member of the final group of applicants or candidates.”

  To me, this phrase unambiguously contemplates multiple finalists.

  The majority, however, says all the plural words in that phrase can

  be read as singular. I disagree. Reading them as singular certainly


                                    27
  isn’t the most natural way to read them, and Colorado courts have

  long favored the most natural reading of statutory language. See,

  e.g., Qwest Corp. v. Colo. Div. of Prop. Tax’n, 

, ¶ 35M,

  abrogated on other grounds by Warne v. Hall, 

; In re

  Petition of S.O., 

 (Colo. 1990); U.S. Fid. & Guar.

  Co. v. People, 

, 

, 832 (1908); Markus v.

  Brohl, 

, ¶ 37. Nor, in a similar vein, is such a

  reading consistent with the commonly understood meanings of

  these terms. See Ybarra v. Greenberg & Sada, P.C., 

 (term that isn’t defined “must be understood according to its

  ordinary meaning”); OXY USA, Inc. v. Mesa Cnty. Bd. of Comm’rs,

  

 (we must give words and phrases in a statute

  “their commonly accepted and understood meanings”). That the

  plural meaning is intended by the General Assembly is further

  borne out by its stringing together of multiple plural terms, as well

  as the clause addressing the situation when there are three or fewer

  applicants.

¶ 56   The majority justifies its treatment of multiple plural terms as

  including the singular in two ways. It says first that while “‘group’

  usually denotes multiple individuals,” the use of that “term alone”


                                    28
does not “dictate[] rewriting the statute in the manner done by the

district court.” See supra at ¶ 27. But the word “group” is always

— not usually — plural.8 A group is “two or more figures . . .

forming a distinctive unit complete in itself or forming part of a

larger composition”; “a relatively small number of individuals

assemble or standing together”; “a number of individuals bound

together by a community of interest, purpose, or function”; or some

other collection made up of at least two elements. Webster’s Third

New International Dictionary 1004 (2002). And so to construe

“group” as plural is not to rewrite the statute, but to enforce it as

written.9




8 In this way, “group” is like “a few,” “several,” or “many.” It isn’t a
singular noun transformed into a plural form of the noun merely by
adding an “s.”
9 The case cited by the Regents in their opening brief, A.N. ex rel.

Ponder v. Syling, 

 (10th Cir. 2019), for the proposition
that “group” can be singular actually supports the notion that a
group is more than one person. It says, “[a]n equal protection claim
may be asserted with respect to a group or a ‘class of one.’” 

 (emphasis added) (citation omitted). (The Regents omit the
internal quotation marks in this quote when quoting this statement
in their opening brief.) The case A.N. cites for this proposition, A.M.
v. Holmes, 

 (10th Cir. 2016), expressly distinguishes
between groups, which comprise more than one person, and classes
of one, which do not. 

.

                                   29
¶ 57   The majority also relies on section 2-4-102, C.R.S. 2020,

  which says that “[t]he singular includes the plural, and the plural

  includes the singular.” But statutes such as this should be applied

  to further legislative intent, not to undermine it. Put another way,

  they should be applied when necessary to carry out the evident

  intent of a statute. See, e.g., First Nat’l Bank in St. Louis v. Missouri,

  

 (1924); Dakota, Minn. & E. R.R. Corp. v. Schieffer,

  

 (8th Cir. 2011); Toy Mfrs. of Am., Inc. v.

  Consumer Prods. Safety Comm’n, 

 (2d Cir. 1980),

  abrogation on other grounds recognized by Prestop Holdings, LLC v.

  United States, 

 (2010); see also 2A Norman J. Singer

  & J. D. Shambie Singer, Sutherland Statutes and Statutory

  Construction § 47:34, at 506-07 (7th ed. 2014). In my view, the

  evident intent of the statute — as expressed by the General

  Assembly’s repeated and connected uses of plural terms in section

  24-72-204(3)(a)(XI)(A) and (as discussed below) other statutory

  provisions — is that “group” means (as it always does) more than

  one person. Therefore, section 2-4-102 doesn’t apply.

¶ 58   The majority also fails to recognize the full import of the clause

  of section 24-72-204(3)(a)(XI)(A) addressing the situation where


                                     30
  there are three or fewer applicants. That clause follows immediately

  after the “group” clause and provides that all applicants are

  considered “finalists” if there are three or fewer applicants. Id. As

  the majority concedes, it makes no sense to require disclosure of all

  applicants in that circumstance but allow an appointing entity to

  designate only one “finalist” where there are more than three

  applicants. But rather than accepting the most logical implication

  of that incongruity, the majority creates a possible rationale for it

  that not even the Regents put forward. In my view, the General

  Assembly’s inclusion of that clause is most naturally regarded as a

  further indication that it intended the plural terms in the preceding

  “group” clause to be applied as commonly understood.

¶ 59   Apart from the text of section 24-72-204(3)(a)(XI)(A) itself,

  section 24-6-402(3.5) of the OML also indicates that the General

  Assembly intended that, except in the case of a single applicant,

  there would always be more than one finalist. It speaks in terms of

  “the list of all finalists under consideration” and “one of the finalists”

  for the position. § 24-6-402(3.5) (emphasis added). The natural

  meaning, or common understanding, of this phrasing is obviously

  that there will be more than one finalist. See Kuhn v. Williams,


                                      31
  

 (statutes relating to the same subject should be

  read together).10

¶ 60   In the end, the majority’s interpretation contravenes the

  supreme court’s admonition that exceptions to CORA’s general rule

  of disclosure must be narrowly construed. By holding, in essence,

  that section 24-72-204(3)(a)(XI)(A) leaves it up to each appointing

  entity to determine for itself what “finalist” means, the majority

  allows appointing entities to shield persons and documents from

  disclosure almost without limitation, contrary to the policy of

  transparency underlying both CORA and the OML.11

¶ 61   Considering the language of section 24-72-204(3)(a)(XI)(A) in

  accordance with the common understanding of that language, the

  context, other related statutes, and our obligation to narrowly

  construe exceptions to CORA’s disclosure requirement, I conclude



  10 All this isn’t to say that the phrase “made public pursuant to
  section 24-6-402(3.5)” does no work in section 24-72-
  204(3)(a)(XI)(A), C.R.S. 2020. That phrase, considered in
  conjunction with section 24-6-402(3.5), C.R.S. 2020, dictates that
  all finalists be made public within the time specified by section 24-
  6-402(3.5) (“no later than fourteen days prior to appointing or
  employing one of the finalists to fill the position”).
  11 The only limitation is that one person must be disclosed.




                                    32
  that it unambiguously requires an appointing entity to identify

  more than one “finalist” in all cases, save where there is only one

  applicant.12

¶ 62   But how many finalists must an appointing entity identify if

  there are more than three applicants? The statute doesn’t say.

  Nor, as currently written, does it give many clues, giving rise to a

  host of questions (as the majority points out). Try as I might, I can’t

  resolve this ambiguity. But I think the answer will vary from case

  to case, depending on the number of applicants, the nature of the

  process involved, and the appointing entity’s substantive bases for

  winnowing the field of candidates.

¶ 63   In this case, I believe the district court reasonably concluded

  that the six persons the Regents interviewed were finalists. I would

  therefore affirm the district court’s judgment and its award of

  attorney fees to the Daily Camera. And I would grant the Daily


  12Because I believe the statute is unambiguous on this score, I
  don’t look to other sources of legislative intent, such as legislative
  history. In any event, I didn’t find any of the legislative history
  recounted by the parties to be particularly enlightening. Nor do I
  consider the Regents’ policy arguments apart from CORA and the
  OML. Such arguments are best directed to the General Assembly.
  Sharon v. SCC Pueblo Belmont Operating Co., LLC, 

.

                                    33
Camera its reasonable attorney fees incurred on appeal. See § 24-

72-204(5)(b).




                                34