This op-ed by Jeffrey Roberts appeared on the CFOIC website on August 1, 2022.
Local governments in Colorado are fighting two CORA-related court rulings they fear “will have far-reaching detrimental effects on nearly all aspects of government operations” if upheld.
In a brief filed recently with the Colorado Court of Appeals, the Colorado Municipal League joined city of Loveland officials in asking for the immediate review of a Larimer County District Court judge’s “manifestly absurd” interpretations of the attorney-client and deliberative process privileges in the Colorado Open Records Act.
Earlier this year, Judge Gregory Lammons found that emails protected from public disclosure by one or the other privilege nonetheless must be provided to a former city of Loveland paralegal discussed in the messages, which were exchanged among city officials. Lammons cited language in CORA requiring the disclosure of otherwise non-disclosable government records to a “person in interest.”
“This result is manifestly absurd and unreasonable and contravenes the General Assembly’s intent in incorporating these common law privileges in CORA,” wrote CML attorneys Robert Sheesley and Rachel Bender in a friend-of the-court brief. If the rulings are upheld, they added, “Colorado governments and the public interests they serve would suffer severe consequences.”
Because of the district court rulings, some local government officials are suggesting that CORA be clarified to protect “all” attorney-client communications from disclosure. Last month, Larimer County asked Colorado Counties Inc. to make the issue a legislative priority in 2023.
The rulings by Lammons pertain to two CORA exemptions. One requires records custodians to deny requests for government records containing “privileged information,” which the Colorado Supreme Court has said includes attorney-client privileged information.
The other concerns the deliberative process privilege, which the legislature codified in the open records law following a 1998 Colorado Supreme Court ruling.
If deliberative process is asserted to withhold records, the government is claiming that the “material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government.” When invoking this exemption, the records custodian must produce an affidavit “specifically describing each document withheld, explaining why each such document is privileged, and why disclosure would cause substantial injury to the public interest.”
In the case of former city of Loveland paralegal Michele DiPietro, who is in a dispute with the city over severance pay, Lammons ruled she is entitled under CORA to inspect 16 emails protected by the deliberative process privilege because she “is clearly a person in interest with regard to these emails. She is the subject of each email.” Separately, the judge ruled that DiPietro is entitled to inspect 22 emails protected by attorney-client privilege because she “is a person in interest.”
Attorney-client privileged documents, Lammons noted in his April 21 ruling, generally are not available to a CORA requester. “However,” he wrote, “the legislature made specific exception for a person in interest. The statute’s language is both unambiguous and mandatory.”
The judge made a similar statement his March 28 ruling regarding the emails protected by the deliberative process privilege: “The text of the statute is unambiguous… The exception of public disclosure is limited by (CORA’s) over-arching requirement of disclosure to a person in interest.”
Both privileges are included in a CORA section specifying categories of records that must be withheld from the public “except that the custodian shall make any of the following records… available to the person in interest.”
But “CORA cannot possibility be construed to grant access to privileged records by a person who is not the beneficiary of the applicable privilege,” CML’s brief contends.
“Nothing in CORA’s 54-year history,” Sheesley and Bender wrote, “suggests that a person is entitled to access a privileged record simply because they are discussed in the record. Privileges of non-disclosure exist to protect the interests of the beneficiary of that privilege, not persons discussed in a privileged document.”
Once the records are disclosed to DiPietro, they noted, the privilege is destroyed because she can “disclose the records to anyone she sees fit.”
“The trial court’s ruling creates the absurd result in which a government cannot use writings to communicate with its attorneys or deliberate on pre-decisonal matters without risking disclosure of privileged information if the communication discusses a third party. If affirmed, the trial court’s ruling will have far-reaching detrimental effects on nearly all aspects of government operations.”
Lammons stayed the release of the emails to DiPietro during the appeal of the privilege issues by Loveland’s city attorney and city clerk.
DiPietro hasn’t filed a brief in the appellate case. In her district court case, she argued that disclosure of the emails about her employment “would have the beneficial effect of public scrutiny upon the quality of their local government agency’s decision-making as an employer.”
Colorado Freedom of Information Coalition Executive Director Jeffrey A. Roberts worked in journalism and public policy before coming to the Colorado Freedom of Information Coalition in July 2013. Learn more about CFOIC here.