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) of the deliberative process privilege. See, e.g., Kaiser, 157 F.Supp. at 946; Carl Zeiss Stiftung, 40 F.R.D. at 325. (FN8.) The predecisional requirement of the privilege does not turn on the ability of an agency to identify a specific decision in connection with which the material was prepared. See id. at 151 n. 18, 95 S.Ct. 1504. Rather, "[a]gencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process." Id.; see also Schell, 843 F.2d at 941 -42. The existence of a specific decision to which a requested document contributed is not entirely irrelevant, however, and will be one factor to which courts should look to determine if a document is predecisional. See Schell, 843 F.2d at 942. *1058 (FN9.) The passage of time may be a factor in evaluating the government's need to protect the material from disclosure. See Walker & Jones, The Deliberative Process Privilege, at 293. "As time posses, one might expect the impact of disclosure to diminish. Few officials are likely to be deterred from engaging in robust discussion about a pending policy merely because their communications might become public at some point in the distant future." Id. at 317; see also Fisher v. ;renegotiation Bd., 473 F.2d 109, 115 (D.C.Cir.1972). (FN10.) Of course, if the document contains non- segregable factual data, the index should note the existence of that material and explain why it is not segregable. (FN11.) Ultimately, the availability and scope of in Page 17 camera review is within the discretion of the trial court. See, e.g., Bureau of Nat'l Affairs, Inc. v. United States Dept of Justice, 742 F.2d 1484, 1497 -98 (D.C.Cir.1984). A proper Vaughn index will also aid appellate review. See Mead Data Cent., 566 F.2d at 250 n. 10. (FN12.) Because the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process, the precedents in this area are of limited assistance in determining whether the privilege should apply in a particular instance. See Coastal States, 617 F.2d at 867. (FN13.) The Supreme Court of Vermont held the same in interpreting a similar provision of the Vermont Access to Public Records statute which exempted from disclosure material protected by any statutory or common law privilege. See Killington, 572 A.2d at 1371, 1375. The court relied upon the Denver Post decision in holding that the exemption "brings common law privileges with their established burdens into the law." Killington, 572 A.2d at 1375. (FN14.) "Work product" includes "all _ intra- , or inter- agency advisory or deliberative materials assembled for the benefit of elected officials, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials. in reaching a decision within the scope of their authority." § 24- 72- 202(6.5)(a), 7 C.R.S. (1998). "Work product" also includes "all documents relating to the drafting of bills or amendments, pursuant to section 2- 3- 505(2)(b), C.R.S., and all research projects conducted by staff of_ legislative council pursuant to section 2 -3- 304(1), C.R.S." § 24- 72- 202(6.5)(b). Copyright (c) West Group 2001 No claim to original U.S. Govt. works