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967 P.2d 1042, City of Colorado Springs v. White, (Colo. 1998) <br />so candid or personal in nature that public disclosure <br />is likely in the future to stifle honest and frank <br />communication within the agency." Coastal States, <br />617 F.2d at 866; see also Van Aire Skyport Corp. <br />v. Federal Aviation Admin., *1053 733 F.Supp. <br />316, 320 (D.Colo.1990). (FN9) Asa consequence, <br />the deliberative process privilege typically covers <br />recommendations, advisory opinions, draft <br />documents, proposals, suggestions, and other <br />subjective documents that reflect the personal <br />opinions of the writer rather than the policy of the <br />agency. See, e.g., Sears, 421 U.S. at 150, 95 S.Ct. <br />1504; Taxation with Representation Fund, 646 F.2d. <br />at 677; Coastal States, 617 F.2d at 866. <br />Is <br />[13][14] The initial burden of proof falls upon the <br />government entity asserting the deliberative process <br />privilege. See Coastal States, 617 F.2d at 868; <br />Mead Data Cent., 566 F.2d at 251; Vaughn II, 523 <br />F.2d at 1146; Walker & Jones, The Deliberative <br />Process Privilege, at 300. Because the government <br />has an obvious advantage over the party seeking the <br />information, the requirements for assertion of the <br />pri ✓ilege are rather technical. The procedural <br />requirements are intended to (1) assure that the <br />party's interest in the information is not "submerged <br />beneath governmental obfuscation and <br />mischaracterization," and (2) allow the courts to <br />effectively and efficiently evaluate the nature of the <br />disputed documents. Vaughn v. Rosen, 484 F.2d <br />820, 826 (D.C.Cir.1973) ( "Vaughn I "); see also <br />Mead Data Cent., 566 F.2d at 251; Walker & <br />Jones, The Deliberative Process Privilege, at 303. <br />[15] The government cannot meet these <br />requirements by conclusory and generalized <br />allegations of privilege. Most courts require that the <br />assertion of the privilege be made in the form of a " <br />Vaughn index, " named for the decision which first <br />imposed the requirement. See Vaughn I, 484 F.2d <br />at 826 -27; Walker & Jones, The Deliberative <br />Process Privilege, at 301. The Vaughn index <br />requires a specific and detailed assertion of the <br />privilege, although the index need not be so detailed <br />that it compromises the purposes served by the <br />privilege. See Church of Scientology v. United <br />States Dept of Army, 611 F.2d 738, 742 (9th <br />Cir.1979); Vaughn I, 484 F.2d at 826. <br />[16] The Vaughn index should provide a specific <br />description of each document claimed to be <br />privileged. See Mead Data Cent., 566 F.2d at 251; <br />Page 12 <br />Vaughn I, 484 F.2d at 826 -27; Walker & Jones, <br />The Deliberative Process Privilege, at 301. <br />Typically, the description should provide each <br />document's author, recipient, and subject matter. <br />See, e.g., Arthur Andersen & Co. v. Internal <br />Revenue Serv., 679 F.2d 254, 258 (D.C.Cir.1982). <br />Further, the index should explain why each <br />document qualifies for the privilege, including <br />descriptions of the deliberative process to which the <br />document is related and the role played by document <br />in that process. See, e.g., Mead Data Cent., 566 <br />F.2d at 250 -52; Walker & Jones, The Deliberative <br />Process Privilege, at 301 -03. The government <br />should also discuss, in the form of an affidavit, why <br />disclosure of each document would be harmful. See <br />Exxon Corp. v. Department of Energy, 91 F.R.D. <br />26, 43 -44 (N.D.Tex.1981); Smith v. Federal Trade <br />Comm'n, 403 F.Supp. 1000, 1016 -17 (D.Del.1975); <br />Walker & Jones, The Deliberative Process <br />Privilege, at 302. Finally, and especially in the <br />case of a large document, the government should <br />distinguish between those portions of the document <br />that are disclosable (such as purely factual data) and <br />those that are allegedly privileged. (FN10) See <br />Vaughn I; 484 F.2d at 827. The index should <br />subdivide the document into manageable portions <br />cross - referenced to the relevant parts of the <br />government's justification for the privilege. See id. <br />[ 17] [ 18] [ 19] Properly constructed; the Vaughn <br />index should provide litigants with fundamental <br />information about the allegedly privileged material, <br />and provide them with a *1054 meaningful <br />opportunity to challenge the government's claims. <br />See Arthur Andersen, 679 F.2d at 258; Vaughn I, <br />484 F.2d at 825 -26. Additionally, a proper Vaughn <br />index is an aid to reviewing courts. An in camera <br />inspection of the disputed material need not <br />automatically follow upon the claim of privilege. <br />See Kaiser, 157 F.Supp. at 947 -48; First Judicial <br />Dist. Court, 629 P.2d at 334; Walker & Jones, The <br />Deliberative Process Privilege, at 312 -13. Where <br />the government has met the procedural requirements <br />for assertion of the deliberative process privilege, <br />the privilege presumptively applies. See Kaiser, 157 <br />F.Supp. at 947; Capital Info. Group, 923 P.2d at <br />37; Hamilton, 414 A.2d at 926 -27; Killington, 572 <br />A.2d at 1375; Walker & Jones, The Deliberative <br />Process Privilege, at 312 -13. In such a case, in <br />camera inspection of the documents is neither <br />mandatory nor (where many documents are <br />involved) practical. See Arthur Andersen, 679 F.2d <br />at 258. (FN11) The trial court should honor the <br />claim of privilege unless the party seeking discovery <br />Copyright (c) West Group 2001 No claim to original U.S. Govt. works <br />