By Jeffrey A. Roberts
CFOIC Executive Director
CORA’s deliberative process privilege might be the most frustrating category under which public records can be kept confidential in Colorado. When invoked, the government is claiming the records you requested contain material “so candid or personal that public disclosure is likely to stifle honest and frank discussion” among officials.
Tantalizing, right? But no, you can’t see the records.
Lawsuits challenging a deliberative process denial under the Colorado Open Records Act aren’t all that common. But Complete Colorado reporter Sherrie Peif recently sued the Colorado Department of Health Care Policy and Financing, contending the agency’s deliberative process claim over 272 requested documents was “overbroad.”
HCPF did not adequately explain why each document was withheld under the privilege and why disclosure of the records would harm the public interest, Peif’s June 30 amended complaint alleges.
“HCPF’s withholding of this large number of documents flies the face of the intent of the Colorado Open Records Act and the public’s need for transparency,” said her attorney, John Zakhem, in a story about the lawsuit.
According to the story and lawsuit, Peif in March requested records pertaining to three hospital-related bills that ultimately passed during the 2023 legislative session and were signed into law by Gov. Jared Polis. Complete Colorado paid $2,500 and received more than 300 documents, including “emails that showed coordination between the department and progressive activists, who in turn had connections to the legislators carrying the bills this session that is set to change the way health care works in Colorado.” But Peif didn’t get additional records identified in a privilege log (called a Vaughn Index) as non-disclosable emails sent and received by HCPF staffers.
In a response filed in Denver District Court last week, lawyers in the Colorado Attorney General’s Office who represent HCPF argued the withheld records were “deliberative discussions,” many involving “key executives” within the agency, about the then-pending hospital legislation as well as draft legislative reports.
“These communications refer to legislation that was making its way through the legislative process, thus making the communications inherently predecisional and deliberative,” wrote first assistant AG Jennifer Weaver and senior assistant AG Ryan Lorch. “… These candid and frank discussions were essential to the Department’s legislative strategy in the recent General Assembly session.”
The Colorado Supreme Court recognized the deliberative process privilege as it applies to public records requests in a 1998 ruling, and the General Assembly made it part of CORA the following year.
If a government entity asserts the privilege, the records custodian must produce a sworn statement “specifically describing each document withheld, explaining why each such document is privileged, and why disclosure would cause substantial injury to the public interest.” If a records requester believes the privilege has been misapplied, they can require the custodian to seek a court order to restrict disclosure.
“In determining whether disclosure of the records would cause substantial injury to the public interest,” the statute says, “the court shall weigh … the public interest in honest and frank discussion within government and the beneficial effects of public scrutiny upon the quality of governmental decision-making and public confidence therein.”
In 2021, a Denver District Court judge found that Mayor Michael Hancock’s office had improperly invoked the deliberative process privilege to deny a request for documents about the city’s Group Living Advisory Committee. After examining the emails in private, the judge determined that most did not reveal a “give and take” and, therefore, were not deliberative.
In the Complete Colorado case, the filing submitted by the AG attorneys claims that disclosure of the emails requested by Peif would expose the authors of the HCPF legislative reports “and executive officers’ thought process to the public and hamper staff when drafting future legislative reports and policy recommendations.”
It also argues that the Vaughn Index provided to Complete Colorado was legally sufficient, striking “the appropriate balance of sufficiently describing the documents and the privilege while upholding the purpose of the privilege.”
Peif’s complaint contends HCPF did not adequately comply with her CORA request because the records custodian told her there were 1,550 “potentially responsive” emails, but the agency produced only 324 and listed another 272 in the Vaughn Index. The AG’s court filing says the number of potentially responsive records “included elected official work product exempt from CORA and duplicates consolidated during review and production.”
A hearing on the lawsuit is scheduled for Sept. 5.
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Do you appreciate the information and resources provided by CFOIC? Please consider making a tax-deductible donation.
