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
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