City of Colorado Springs v. David White November 1998

Home Browse Search

967 P.2d 1042, City of Colorado Springs v. White, (Colo. 1998) Justice MARTINEZ delivered the Opinion of the Court. We granted certiorari in this case to consider whether the governmental deliberative process privilege exists in Colorado. We hold that such a privilege does exist. We hold further that materials falling within the ambit of the deliberative process privilege are not subject to disclosure in the context of a request for public records under the Colorado open records laws, §§ 24 -72 -201 to -309, 7 C.R.S. (1998) (the "open records laws "). Accordingly, we reverse the judgment of the court of appeals in White v. City of Colorado Springs, 950 P.2d 637 (Colo. App. 1997). I. Pursuant to the open records laws, respondent David White requested copies of certain materials in the possession of the Community Services Department of the City of Colorado Springs. The requested materials included a report generated by an outside consultant, Dr. Don Warrick, (the "Warrick Report ") at the request of the head of the Community Services Department, Carla Hartsell. The report contained the results of an investigation of the Industrial Training Division, an entity under the supervision of the Community Services Department. The report was related to an internal evaluation of the Industrial Training Division. Hartsell, as custodian of the Warrick Report, denied inspection of the report, asserting that the report was privileged under the governmental deliberative process privilege. Hartsell, however, did release a copy of the consultant contract between the City and Dr. Warrick which revealed the fees paid for his services. Pursuant to section 24- 72- 204(5), 7 C.R.S. (1998), White applied to the District Court of El Paso County for an order directing Hartsell and the City (the "Petitioners ") to show cause why they should not permit inspection of the Warrick Report. The Petitioners maintained that inspection of the report was properly denied under section 24- 72- 204(3)(a)(IV), 7 C.R.S. (1998), because the report was "privileged information" within *1046 the meaning of the statute. (FN1) White asserted that the deliberative process privilege does not exist in Colorado, and thus the Petitioners had no basis to deny the inspection request. After a hearing and in camera review of the Warrick Report, the trial court agreed with the Page 6 Petitioners and discharged the order to show cause. The trial court found that the open records laws excepted information from inspection that is protected by the deliberative process privilege. The trial court found further that the Warrick Report was protected by the privilege because: (1) the report was "predecisional," (2) the report "contains information that is candid and personal from employees of the Industrial Training Division," and (3) "public disclosure of the report would chill honest and frank communications in the future." The court of appeals reversed. See White, 950 P.2d at 639. The court acknowledged that federal authority recognizes a deliberative process privilege, but found "no corollary authority in Colorado law." Id. The court also noted that "[m]ost of the federal authority arises under a provision of the Freedom of Information Act [the "FOIA "], 5 U.S.C. § 552(b)(5) (1994)." Id. Because the court found that the open records laws do not include a provision similar to the FOIA § 552(b)(5), the court was further convinced that Colorado courts need not recognize the deliberative process privilege. The court of appeals also looked to recent amendments to the open records laws in which the General Assembly exempted from the definition of public records " 'work product prepared for elected officials.' " White, 950 P.2d at 639 (quoting § 24- 72- 202(6)(b)(II), IOB C.R.S. (1996 Supp.)); see also § 24 -72- 202(6.5), 10B C.R.S. (1996 Supp.). The court concluded that these amendments amounted to creation of "a limited statutory deliberative process privilege." White, 950 P.2d at 639. Consequently, the court declined to recognize an "expansive"' common law deliberative process privilege "where, as here, the General Assembly initially declined to create any such privilege at the time [the open records laws were] adopted and later created a limited statutory deliberative process privilege which does not cover the document in question. " Id. The court of appeals remanded the case for entry of an order requiring the Petitioners to allow inspection of the Warrick Report. Upon certiorari review by this court, the Petitioners claim that the deliberative process privilege is a common law evidentiary privilege that exists independently of either the open records laws or the FOIA. Thus, the Petitioners contend that the fact that the open records laws do not contain language identical to the FOIA is not dispositive of Copyright (c) West Group 2001 No claim to original U.S. Govt. works