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967 P.2d 1042, City of Colorado Springs v. White, (Colo. 1998) <br />makes a preliminary showing that the material may <br />not be privileged or that there is some necessity for <br />its production. See Kaiser, 157 F.Supp. at 947; <br />Capital Info. Group, 923 P.2d at 37; Hamilton, <br />414 A.2d at 926 -27; First Judicial Dist. Court, 629 <br />P.2d at 334. <br />To reiterate, the deliberative process privilege is a <br />qualified privilege. It may be overcome upon a <br />showing that the discoverant's interests in disclosure <br />of the materials is greater than the government's <br />interests in their confidentiality. See, e.g., <br />Martinelli, 199 Colo. at 170, 612 P.2d at 1088. <br />The determination of need must be made flexibly on <br />a case -by -case, ad hoc basis. See In re Sealed Case, <br />121 F.3d at 737. Factors relevant to this balancing <br />include: the relevance of the evidence, whether <br />there is reason to believe the documents may shed <br />light on government misconduct, whether the <br />information sought is available from other sources <br />and can be obtained without compromising the <br />government's deliberative processes, and the <br />importance of the material to the discoverant's case. <br />See In re Sealed Case, 121 F.3d at 737 -38; <br />Martinelli, .199 Colo. at 171, 612 P.2d at 1089; <br />Walker & Jones, The Deliberative Process <br />Privilege, at 318 -20. (FN12) <br />[20] !n most cases, where the party seeking <br />discovery makes a sufficient showing of need, the <br />court should grant an in camera inspection. See <br />Hamilton, 414 A.2d at 927; First Judicial Dist. <br />Court, 629 P.2d at 334; Killington, 572 A.2d at <br />1376; . Walker & Jones, The Deliberative Process <br />Privilege, at 312 -13. Depending upon the <br />circumstances, the court should use the inspection <br />"to determine whether the material is privileged, to <br />sever privileged from non - privileged material if <br />severability is feasible, and to weigh the <br />government's need for confidentiality against the <br />litigant's need for production." Hamilton, 414 A.2d <br />at 927. <br />IV. <br />We next determine that the deliberative process <br />privilege may be asserted in response to an open <br />records request. Finally, we apply the privilege to <br />the facts before us. <br />A. <br />In the instant case, respondent White requested <br />inspection of the Warrick Report pursuant to the <br />Page 13 <br />open records laws. The Petitioners do not dispute <br />the fact that the Warrick Report is a "public record" <br />under the open records laws. See § <br />24- 72- 202(6)(a)(I), 7 C.R.S. (1998). The <br />Petitioners contend, however, that material protected <br />by the deliberative process privilege is not subject to <br />public inspection because section <br />24- 72- 204(3)(a)(IV) exempts "privileged <br />information." We agree. <br />*1055 [21] In enacting the open records laws, the <br />General Assembly "did not intend that the open <br />records laws would supplant discovery practice in <br />civil litigation." Martinelli, 199 Colo. at 177, 612 <br />P.2d at 1093. The exemption for "privileged <br />information" existed in the original draft of the open <br />records legislation. See Colorado Legislative <br />Council, Research Publication No. 126, Open <br />Public Records for Colorado, at xvii (1967). This <br />category of records "extends to various types of <br />government -held information essentially private in <br />nature. " Id. The exemption for "privileged <br />information" in section 24- 72- 204(3)(a)(IV), <br />therefore, includes various common law evidentiary <br />privileges, such as the attorney - client privilege and <br />the attorney work product privilege. See Denver <br />Post Corp. v. University of Colo., 739 P.2d 874, <br />880 (Colo.App.1987). <br />[22] One of the most frequently asserted common <br />law privileges for government -held information is <br />the deliberative process privilege. See discussion <br />supra Part II. Federal courts have found that <br />Exemption 5 of the FOIA incorporates the attorney - <br />client privilege, the attorney work product privilege, <br />and the deliberative process privilege. The court of <br />appeals has specifically found that section <br />24- 72- 204(3)(a)(IV) incorporates the attorney- client <br />privilege and the attorney work product privilege. <br />See Denver Post, 739 P.2d at 880. Neither the <br />FOIA nor the open records laws refer to these <br />common law privileges by name, rather they protect <br />material insulated by these privileges by general <br />reference to discovery principles. Because the <br />common law deliberative process privilege exists <br />apart from the open records laws, these statutes need <br />not identify it in detail in order to preserve the <br />privilege in the public records context. See, e.g., <br />Killington, 572 A.2d at 1375. We hold that the <br />open records laws incorporate the deliberative <br />process privilege in section 24- 72- 204(3)(a)(IV). <br />(FN 13) <br />[23] Furthermore, we are not persuaded that recent <br />Copyright (c) West Group 2001 No claim to original U.S. Govt. works <br />