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City of Colorado Springs v. David White November 1998
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City of Colorado Springs v. David White November 1998
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City of Colorado Springs v. David White November 23 1998. No. 97SC685
State
CO
Date
11/23/1998
Title
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) <br />[28] Therefore, once the government has met its <br />burden of proof by satisfying the procedural <br />requirements, the privileged material is beyond <br />public inspection. <br />HIM <br />In the present case, the Petitioners asserted that the <br />Warrick Report is protected by the deliberative <br />process privilege, and is therefore exempt from <br />inspection under section 24- 72- 204(3)(a)(IV). The <br />trial court responded to this assertion of privilege by <br />taking testimony on the issue of the government's <br />need for confidentiality and by conducting an in <br />camera review of the Warrick Report. The <br />transcript of the hearing on the order to show cause, <br />as well as the text of the court's order, make clear <br />that the court applied the proper legal standards in <br />assessing the deliberative process privilege claim. <br />The court found that (1) the report was <br />"predecisional," (2) the report "contains information <br />that is candid and personal from employees ' of the <br />Industrial Training Division," and (3) "public <br />disclosure of the report *1057 would chill honest <br />and friin1k communications in the future." <br />Accordingly, the court concluded that the report was <br />protected,:by the deliberative process privilege.. <br />[29] Because we had not articulated the procedural <br />requirements for assertion of the privilege at the <br />time the Petitioners made their claim, we will not <br />evaluate the claim for strict compliance with these <br />requirements. Under these circumstances, we find <br />that the trial court's in camera review was more <br />than an adequate substitute for an evaluation of a <br />Vaughn index. Like the trial court, we have <br />conducted _our own examination of the Warrick <br />Report. We subsequently review the trial court's <br />conclusions pursuant to an abuse of discretion <br />standard. Cf..Bond v. District Court, 682 P.2d. 33, <br />40 (Colo.1984) (holding that, so long as trial court <br />applies correct legal standard, "[d]iscovery rulings <br />are ordinarily within the discretion of the trial <br />court "). See generally In re Sealed Case, 121 F.3d <br />at 740 (noting that appellate court ordinarily reviews <br />trial court's ruling that privilege applies to <br />documents "only for arbitrariness or abuse of <br />discretion "). <br />[30] Our review of the Warrick Report confirms <br />that it contains an evaluation of the working <br />environment and policies of the Industrial Training <br />Division. The report contains observations on the <br />current atmosphere and suggestions on how to <br />Page 15 <br />improve it. Thus, the report qualifies as <br />predecisional in that it was designed to guide the <br />Petitioners in developing strategies to improve the <br />division. The report is also deliberative. The report <br />is largely composed of employees' opinions as to the <br />strengths and weaknesses of the Industrial Training <br />Division and its administrator. The role of these <br />opinions and observations was to assist the <br />decisionmaking process rather than to serve as an <br />expression of a final agency decision. <br />We also note that neither Dr. Warrick, the author <br />of the report, nor the employees interviewed by him <br />possessed the authority to promulgate final decisions <br />for the agency. They could only offer suggestions <br />to the true decisionmakers, and did so in the report. <br />Furthermore, in order to promote frank and open <br />discussion during an agency's deliberative process, <br />the deliberative process privilege protects opinions <br />and recommendations to a government agency by <br />outside consultants so long as such opinions and <br />recommendations are obtained during . the agency's <br />deliberative predecisional process. See Wit v. <br />National . Endowment for Humanities, 460 F.2d <br />1030, 1032 (5th Cir.1972); Soucie, 448 F.2d at <br />1078 ;i. 44;. Walker & Jones, The Deliberative <br />Process Privilege, at 300. Finally, the Warrick <br />Report contains the employees' candid and personal <br />views--about its - administrator_:__- _As___ <br />the trial court found, the knowledge that these views <br />may be disclosed publicly is likely to discourage <br />such frankness in the future. <br />Respondent White also argues that the Warrick <br />Report does not qualify for the protection of the <br />deliberative process privilege because (1) the <br />Petitioners have not identified a specific policy or <br />decision to which the report is connected and (2) the <br />report contains the results of a survey and therefore <br />contains disclosable factual material. Hence, White <br />asserts that the trial court erred in finding that the <br />report came within the ambit of the privilege. We <br />disagree. <br />First of all, the government need not be able to <br />point to a specific decision or policy in connection <br />with which the material was prepared in order for <br />the material to be considered predecisional. See <br />discussion supra Part III.A. Although it is <br />unnecessary to point to a specific decision or policy, <br />we note that petitioner Hartsell's affidavit to the <br />court identified "the evaluation and assessment of <br />the Industrial Training Division . and its <br />Administrator in order to identify any .current <br />Copyright (c) West Group 2001 No claim to original U.S. Govt. works <br />
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