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) Page 16 problems within the Industrial Training Division and (Wilkey, J., concurring) (emphasis added); see to develop strategies to improve the division," as a also Hamilton, 414 A.2d at 924 ( "The executive specific deliberative process to which the Warrick privilege concept has been considered part of the Report was related. common law of evidence."). Secondly, while it is true that the report contains the results of a survey of employees, it does not follow that this material is necessarily factual in nature. As explained above, the report is composed almost entirely of the employees' personal opinions. These contents can hardly be defined as purely factual material. We therefore reject White's arguments. We conclude that the trial court did *1058. not abuse its discretion in finding that the report was protected by the deliberative process privilege. V. We hold that the deliberative process privilege is part of the common law of this state. We also find that the open records laws exempt material that comes within the scope of the privilege from public inspection. Because the court of appeals found that the privilege does not exist in Colorado, we reverse the judgment bf that court. (FN1.) Section 24- 72- 204(3)(a) provides, in part: Ile custodian shall deny the right of inspection of I he following. records, unless otherwise provided by law ...: - (IV) Trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data furnished by or obtained from any person; (Emphasis added.) (FN2.) Because the deliberative process privilege belongs uniquely to the government (and, most often, to administrative agencies), this federal court has emerged as the preeminent authority on matters related to the privilege. (FN3.) "Historically, and apart from the Constitution, the privilege against public disclosure or disclosure to coequal branches of the Government. arises from the common sense - common law principle that not all public business can be transacted completely in the open." Soucie v. David, 448 F.2d 1067, 1080 (D.C.Cir.1971) (FN4.) 5 U.S.C. § 552(b) provides: This section [regarding mandatory disclosure] does not apply to matters that are -- (5) inter- agency or intra- agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (FNS.) Thus, insofar as the federal executive branch is concerned, the information protected by the deliberative process privilege is also covered by FOIA Exemption 5. It has been held, however, that the deliberative process privilege "is a tripartite privilege because it exists for the legislative and judicial branches of government as well as for the executive. " Daily Gazette Co., Inc. v. West . Va.. ; Dev. Office, 198 W.Va. 563, 482 S.E.2d 180,, 188 n. 16 (W.Va.1996); see also Soucie,� 448 F.,2d at 1080 (Wilkey, ,c , Guy v. Judicial Nominating Comrn'n, 659 A.2d 777, 782 (Del. Super. Ct. 1995). (FN6.) In a similar situation, the Supreme Court of Alaska held that, although it had never recognized the deliberative process privilege by that name, its prior recognition of the executive privilege was precedent for the existence of the deliberative process privilege in Alaska. See Capital Info. Group, 923 P.2d at 33 -34. The court explained, "[T]he term executive privilege' in Doe encompasses what other commentators have called the deliberative process privilege. We consider the terms to be synonymous for purposes of - this discussion." Capital Info. Group, 923 P.2d at 34 (citing Doe v. Alaska Superior Court, 721 P.2d 617 (Alaska 1986)). (FN7.) We find it significant that the common law evidentiary privilege, described in Morgan, which protects the "mental processes" of an. executive or administrative officer has long been recognized in this state. See Gilpin County Bd. of .Equalization v. Russell, 941 P.2d 257, 264 (Colo.1997). As discussed in Part II.A of this opinion, the mental processes rule is one of the traditional foundations Copyright (c) West Group 2001 No claim to original U.S. Govt. works