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) amendments to the open records laws have abrogated this common law privilege. See White, 950 P.2d at 639. In 1996, the General Assembly amended the definition of public records to exclude various materials related to elected officials. See ch. 271, sec. 4, § 24 -72 -202, 1996 Colo. Sess. Laws 1479, 1481 -82. These materials include "work product" (FN14) prepared for elected officials, certain correspondence without a connection to the exercise of an official's functions, and confidential communications between constituents and elected officials. See id. [24][25] Statutes are not presumed to alter the common law unless they expressly, or by necessary implication, provide for such alteration. See Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997); Robinson v. Kerr, 144 Colo. 48, 52, 355 P.2d 117, 119 -20 (1960). A statute is merely cumulative of the common law if the legislature intended not to interfere with preexisting rights, but to give additional relief. See Vaughan, 945 P.2d at 408. In the 1996 amendments to the open records laws, the General Assembly did not manifest an intent to. alter the corrinlon law deliberative process privilege, either expressly or by clear implication. The exemptions from the definition of a public record created by the amendments are neither coextensive nor necessarily inconsistent with the deliberative process privilege. The amendments protect from public inspection certain materials, such as correspondence from constituents, *1056 that would not automatically be protected by the deliberative process privilege. Moreover, nothing m the legislative history of these amendments suggests that the General Assembly contemplated the deliberative process privilege or the official information privilege (as it was termed in Martinelli ). Instead, the legislative history demonstrates that the 1996 amendments were intended to extend the traditional notions of the attorney - client and attorney work product privileges to cover certain legislative materials. See Hearing on S. 96 -212 Before . the Senate Committee on Business Affairs & Labor, 60th Gen. Assembly, 2nd Reg. Sess. (Mar. 11, 1996); Hearing on S. 96 -212 Before the House Committee on State, Veterans, & Military Affairs, 60th Gen. Assembly, 2nd Reg. Sess. (Apr. 9, 1996). See generally White, 950 P.2d at 639 ( "the General Assembly [in the 1996 amendments] intended to limit, not expand, access to public documents "). Thus, the General Assembly has not expressed a clear intent to abrogate the Page 14 deliberative process privilege; indeed, the history and effect of the 1996 amendments evidence an intent to expand, rather than to narrow, common law privileges with respect to legislative material. Accordingly, we find that the deliberative process privilege remains viable and applicable to a public records request. [26][27] As it does in the discovery context, the government entity asserting the privilege has the initial burden of proof in response to a public records request. The government must compile a proper Vaughn index with supporting affidavits. See, e.g., Mead Data Cent., 566 F.2d at 250 751 (applying Vaughn requirements in FOIA context). In contrast to the discovery context, however, the need of the party requesting disclosure is not relevant to a request for public records. See Sears, 421 U.S. at 149 n. 16, 95 S.Ct. 1504; In re Sealed Case, 121 F. 3d at 737 n. 5; Mead Data Cent., 566 F.2d at 252 n. 14. The particular purpose for which one seeks the public record is not relevant in determining whether disclosure is required -because the open records laws only require- disclosure of materials which would be routinely disclosed in discovery. We find support for this conclusion in the mandatory language of the open records laws; which provides that "[t]he- custodian shall deny the right of inspection" of privileged information. § 24- 72- 204(3)(a) (emphasis added); cf. § 24-72-204(2)(a), 7 C.R.S. (1998) (stating thaf "[t]he custodian may deny the right of inspection" of certain other records) (emphasis added). In the context of the FOIA, the Supreme Court has explained that: [t]he ability of a private litigant to override a privilege claim set up by the Government, with respect to an otherwise disclosable document, may itself turn on the extent of the litigant's need in the context of the facts of his particular case; or on the nature of the case. However, it is not sensible to construe the [FOIA] to require disclosure of any document which would be disclosed in the hypothetical litigation in which the private party's claim is the most compelling.... Exemption 5 was intended to permit disclosure of those intra - agency memoranda which would "routinely be disclosed" in private litigation. Sears, 421 U.S. at 149 n. 16, 95 S.Ct. 1504 (citations omitted). Copyright (c) West Group 2001 No claim to original U.S. Govt. works