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) 1504; see also Taxation with Representation Fund, 646 F.2d at 677. [5][6] Conversely, postdecisional documents, communications made after the decision and designed to explain it, are not protected by the privilege. This distinction is supported by two considerations. First, the quality of a decision will not be affected by forced disclosure of communications occurring after the decision is finally reached. See Sears, 421 U.S. at 151, 95 S.Ct. 1504. Second, the public has a strong interest in the disclosure of reasons that do supply the basis for an agency policy actually adopted. See id. at 152, 95 S.Ct. 1504; Taxation with Representation Fund, 646 F.2d at 678. "These reasons, if expressed within the agency, constitute the 'working law' of the agency," and as such should be disclosed to the public. Sears, 421 U.S. at 152, 95 S.Ct. 1504. (FN8) - *1052 [7] Material that is predecisional in nature normally retains its protection even after the decision is made. See May v. Department of Air Force, 777 F.2d 1012, 1014 -15 (5th Cir.1985); United States v. Capitol Serv., Inc., 89 F.R.D. 578, 583 (E.D:Wis.1981); Walker & Jones, The Deliberative Process Privilege, at 292 -93. Because an agency's final decision is not protected under the privilege, however, predecisional material can lose its protected status if the decisionmaker incorporates the material by reference, or expressly adopts it, in the final decision. See Sears, 421 U.S. at 161, 95 S.Ct. 1504; Bristol - Meyers Co. v. Federal Trade Comm'n, 598 F.2d 18, 23 (D.C.Cir.1978); Walker & Jones, The Deliberative Process Privilege, at 293. [8] The predecisional /postdecisional dichotomy is a useful starting point in determining which documents are privileged. Of course, not all predecisional material is privileged; the material must also be part of the deliberative process by which a decision is made. See Taxation with Representation Fund, 646 F.2d at 678; Mead Data Cent., 566 F.2d at 257. The material must reflect the "give- and -take of the consultative process." Coastal States, 617 F.2d at 866. In determining whether material is deliberative, courts have distinguished between "advisory materials which truly reflect[ ] the deliberative or policymaking processes of an agency" and "purely factual, investigative material" which is not protected. Mink, 410 U.S. at 89, 93 S.Ct. 827; see In re Sealed Case, 121 F.3d at 737; Schell, 843 F.2d at 940; Wolfe, 839 F.2d at 774; Page 11 see also Martinelli, 199 Colo. at 171, 612 P.2d at 1089 (holding that whether privilege applies depends upon whether information sought is factual data or evaluative summary). [9] While the fact /opinion distinction is helpful in determining what is privileged, courts should not "mechanically apply" the test in every case. Wolfe, 839 F.2d at 774; see also Schell, 843 F.2d at 940 (noting that fact /opinion distinction "should not serve as a talismanic incantation in every case "). The deliberative process privilege protects factual material that is "so inextricably intertwined with the deliberative sections of the documents that its disclosure would inevitably reveal the government's deliberations." In re Sealed Case, 121 F.3d at 737; see Mink, 410 U.S. at 87 -91, 93 S.Ct. 827; Wolfe, 839 F.2d at 774. [10] Courts have also looked to other considerations in assessing whether material is predecisional and deliberative. The function and significance of the document in the agency's decisionmaking process are relevant. See Taxation with Representation Fund, 646 F.2d<'at 678; Coastal States, 617 F.2d at 868. Documents representing the ideas and theories that go into the making of policy, which are privileged, should be distinguished from "binding agency opinions and interpretations" that are "retained and referred to as precedent" and constitute the policy itself. Sterling Drug, Inc. v. Federal Trade Comm'n, 450 F.2d 698, 708 (D.C.Cir.1971); see Coastal States, 617 F.2d at 859 -60. [11] Furthermore, courts examine the identity and decisionmaking authority of the office or person issuing the material. See Taxation with Representation Fund, 646 F.2d at 679; Coastal States, 617 F.2d at 868. A document from a subordinate to a superior official is more likely to be predecisional, "while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made." Coastal States, 617 F.2d at 868; see Taxation with Representation Fund, 646 F.2d at 679 -81; Walker & Jones, The Deliberative Process Privilege, at 291 -92. [12] Finally, in addition to assessing whether the material is predecisional and deliberative, and in order to determine if disclosure of the material is likely to adversely affect the purposes of the privilege, courts inquire whether "the document is Copyright (c) West Group 2001 No claim to original U.S. Govt. works