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) whether the privilege exists in Colorado. The Petitioners assert that the policies supporting the privilege in the context of the federal government are equally applicable to state government. Further, the Petitioners allege that the deliberative process privilege, and the policies which support its existence, have already been recognized under a different name by this court in Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980). Finally, the Petitioners maintain that the trial court correctly found that the Warrick Report qualifies for protection under the deliberative process privilege. II. Essential to the question of whether the deliberative process privilege exists in Colorado is an understanding of the origin and purposes of the privilege. Thus, we will first . discuss the development and rationale of the deliberative process privilege. Next, we will examine the role of the privilege in Colorado. A. [1] The deliberative process privilege is unique to the government. See Coastal States Gas Corp. v. Department of Energy, *1047 617 F.2d 854, 866 (D.C.Cir.1980). It is a widely recognized confidentiality privilege asserted by government officials. See Capital Info. Group v. Alaska, 923 P.2d 29, 33 (Alaska 1996) (citing Natalie A. Finkelman, Note, Evidence and Constitutional Law, 61 Temp. L.Rev. 1015, 1033 (1988)). The privilege rests on the ground that public disclosure of certain communications would deter the open exchange of opinions and recommendations between government officials, and it is intended to protect the government's decision - making process, its consultative functions, and the quality of its decisions. See id. According to some commentators, the deliberative process privilege originated in the eighteenth and nineteenth centuries within the concept of the English "crown privilege." See Russell L. Weaver & James T.R. Jones, The Deliberative Process Privilege, 54 Mo. L.Rev. 279, 283 (1989) (hereinafter, "Weaver & Jones, The Deliberative Process Privilege "). Early American cases recognized a privilege derived, to some degree, from the crown privilege. See id. at 284 n. 29. Although these cases did not recognize the deliberative process privilege by name, the cases Page 7 "did protect materials of the sort which the deliberative process privilege now encompasses. " Id. at 285. Those early cases that are generally considered critical to the development of the privilege in this country, and to our discussion, include Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 82 L.Ed. 1129 (1938), Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct.CI. 38, 157 F.Supp. 939 (Ct.C1.1958), and Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966). See, e.g., HERB v. Sears, Roebuck & Co., 421 U.S. 132, 149 -50, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); Capital Info. Group, 923 P.2d at 34; Weaver & Jones, The Deliberative Process Privilege, at 286 -88. The Court in Morgan encountered a challenge to the method used by the Secretary of Agriculture to set stockyard rates. The Court held, "[I]t was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions." Morgan, 304 U.S. at 18, 58 S.Ct. 773. This protection for the mental processes of government decisionmakers was built upon in Kaiser. That case involved a discovery request for production of a "confidential intra- office advisory opinion" of the kind "that every head of an agency must rely upon for aid in determining a course of action." Kaiser, 157 F.Supp. at 945 -46. Drawing an analogy to the "mental processes" rule described in Morgan, the Kaiser court held that the document in question belonged to the class of governmental documents privileged from inspection as "part of the administrative reasoning process." Kaiser, 157 F.Supp. at 946. In Carl Zeiss Stiftung, the court recognized a "well - established" evidentiary privilege for "intra- governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." 40 F.R.D. at 324. The court found support for this privilege in the "policy of frank expression and discussion among those upon whom rests the responsibility for making the determinations that enable government to operate. " Id. The court held that the privilege also rests upon the rule, discussed in Morgan, that the judiciary is not authorized to probe the mental processes of an executive or administrative officer. See id. at 325. The evidentiary privilege for intra- governmental opinions and deliberations, the court found, is necessary to the integrity of the administrative process. See id. at 326. Copyright (c) West Group 2001 No claim to original U.S. Govt. works