City of Colorado Springs v. David White November 1998

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967 P.2d 1042, City of Colorado Springs v. White, (Colo. 1998) Martinelli, 199 Colo. at 169, 612 P.2d at 1088 In Martinelli, we also looked to the case of Wood v. Breier, 54 F.R.D. 7 (E.D.Wis.1972), as support for the official information privilege. See Martinelli, 199 Colo. at 169, 612 P.2d at 1088. The court in Wood dealt with "what is commonly termed executive privilege," and noted that the "privilege is generally recognized for ' intra- and inter - agency advisory opinions and recommendations submitted for consideration in the performance of decision- and policy - making functions.' " Wood, 54 F.R.D. at 12 (quoting Freeman v. Seligson, 405 F.2d 1326, 1339 (D.C.Cir.1968)). Finally, we note that our discussion of the privilege at issue in Martinelli parallels the traditional distinction between the constitutional and common law components of the executive privilege. After acknowledging that we were addressing some form of executive privilege, we took care to "specifically exclude" from our discussion that form of the privilege "which relates to diplomatic or military _ secrets:" Martinelli, 199 Colo. at 169 n. 1, 612 P.2d at 1:088.n. 1. Our explanation of the limits of our holding. further demonstrates that Martinelli concerned the common law executive privilege (i.e., the deliberative process.privilege). Thus, rot only has the evidentiary privilege recognized in Martinelli been sometimes called the deliberative process privilege, but it derives from the same common law origins and encompasses the same policy concerns as the deliberative process privilege. (FN6) Accordingly, we conclude that the deliberative process privilege is part of the common law of Colorado. (FN7) III. In light of our recognition of the deliberative process privilege as part of the common law of Colorado, we next address the substantive *1051 requirements for the protection of the privilege. We will then discuss the appropriate procedure for asserting the deliberative process privilege. A. [3] The deliberative process privilege is a qualified privilege. See, e.g., In re Sealed Case, 121 F.3d at 737. It applies in a particular instance if the purposes of the privilege are thereby served. The primary purpose of the privilege is to protect the Page 10 frank exchange of ideas and opinions critical to the government's decisionmaking process where disclosure would discourage such discussion in the future: [The privilege] serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action. Coastal States, 617 F.2d at 866; see also Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C.Cir.1978). [4] Thus, a key question in a deliberative process privilege case is whether disclosure of the material would expose an agency's decisionmaking process in such a way as to discourage discussion within :the agency and. thereby undermine the agency's ability to perform its functions. See Schell, 843 F.2d .at 940; Dudman Communications Corp. v. Department. of -Air Force, 815 F.2d 1565; 1568 - (D.C.Cir.1997o; see also Martinelli, 199 Colo. at 171, 612 P.2d at 1089 (holding that whether privilege applies depends upon "the degree to. which governmental self - evaluation and consequent program improvement will be chilled by disclosure "). In light of the purposes of the privilege, it protects only material that is both predecisional (i.e., generated before the adoption of an agency policy or decision) and deliberative (i.e., reflective of the give- and -take of the consultative process). See, e.g., In re Sealed Case, 121 F.3d at 737; Coastal, States, 617 F.2d at 866. Predecisional documents are protected because the "quality of a particular agency decision will clearly be affected by the communications received by the decisionmaker on the subject of the decision prior to the time the decision is made." Sears, 421 U.S. at 151, 95 S.Ct. 1504. Moreover, the public has only a marginal interest in the disclosure of "reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground." Id. at 152, 95 S.Ct. Copyright (c) West Group 2001 No claim to original U.S. Govt. works