967 P.2d 1042, City of Colorado Springs v. White, (Colo. 1998)
<br />Although the privilege protecting the deliberative
<br />processes of government originated as a common
<br />law privilege, the privilege is most commonly
<br />encountered, at the federal level, in FOIA litigation.
<br />See In re Sealed Case, 121 F.3d at 737; Wolfe, 839
<br />F.2d at 773. This stems from the fact that
<br />Congress incorporated the deliberative process
<br />privilege into the FOIA by way of "Exemption 5," 5
<br />U.S.C. § 552(b)(5) (1994). (FN4) See, e.g., Sears,
<br />421 U.S. at 150, 95 S.Ct. 1504; Environmental
<br />Protection Agency v. Mink, 410 U.S. 73, 86, 93
<br />S.Ct. 827, 35 L.Ed.2d 119 (1973); Schell v. United
<br />States Dep't of Health & Human Servs., 843 F.2d
<br />933, 939 (6th Cir.1988); Mead Data Cent., Inc. v.
<br />United States Dep't of Air Force, 566 F.2d 242, 256
<br />(D.C.Cir.1977); Vaughn 11, 523 F.2d at 1146.
<br />Exemption 5 also incorporates other common law
<br />evidentiary privileges such as the attorney - client
<br />privilege and the attorney work product privilege.
<br />See Sears, 421 U.S. at 154, 95 S.Ct. 1504; Schell,
<br />843 F.2d at 939; Mead Data Cent., 566 F.2d at
<br />252. The "ultimate goal that Exemption 5 seeks to
<br />achieve is to prevent the quality of agency
<br />decisionmaking from deteriorating as a result of
<br />public exposure." Schell, 843 F.2d at 939; see also
<br />Sears, 421 U.S. at 151, 95 S.Ct. 1504. (FN5)
<br />In addition to the federal authorities, several state
<br />courts have recognized the privilege protecting the
<br />deliberative processes of government. See, e.g.,
<br />Capital Info. Group v. Alaska, 923 P.2d 29, 33 -34
<br />(Alaska 1996); Times Mirror Co. v. Superior
<br />Court, 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d
<br />240, 248 -51 (Cal.1991); Hamilton v. Verdow, 287
<br />Md. 544, 414 A.2d 914, 924 (Md.1980); Ostoin v.
<br />Waterford Township Police Dept, 189 Mich.App.
<br />334, 471 N.W.2d 666, 668 (Mich.Ct. App. 1991);
<br />Nero v. Hyland, 76 N.J. 213, 386 A.2d 846, 853
<br />(N.J.1978); State ex rel. Attorney Gen. v. First
<br />Judicial Dist. Court,- 96 N.M. 254, 629 P.2d 330,
<br />333 -34 (N.M.1981); Dorchester Master Ltd.
<br />Partnership v. Cabot Pipeline Corp., 137 Misc.2d
<br />442, 521 N.Y.S.2d 209, 210 -11 (N.Y.Sup.Ct.1987)
<br />; Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d
<br />1368, 1373 -74 (Vt.1990). These courts uniformly
<br />find support for the existence and scope of the
<br />privilege in the federal decisions discussing the
<br />executive or deliberative process privilege (e.g.,
<br />Kaiser and Sears ).
<br />FOR
<br />[2] This court has never explicitly recognized the
<br />deliberative process privilege by that name. In
<br />Page 9
<br />Martinelli, however, we accepted the common law
<br />evidentiary privilege "variously referred to as the
<br />'official information,' 'governmental,' or
<br />'executive' privilege." 199 Colo. at 169, 612 P.2d
<br />at 1088. This privilege, we explained, "sanctions
<br />the nondisclosure by governmental agencies or
<br />instrumentalities of information, files, reports, or
<br />memoranda maintained by those agencies or
<br />instrumentalities, when 'disclosure would be
<br />harmful to the public interest.' " Id. (quoting
<br />United States v. O'Neill, 81 F.R.D. 664, 666
<br />(E.D. Pa. 1979)). We hold that the official
<br />information privilege recognized in Martinelli
<br />encompasses what is often termed the "deliberative
<br />process privilege. "
<br />That the terms "official information privilege,"
<br />"executive privilege," "deliberative *1050 process
<br />privilege," and "governmental privilege" are used
<br />interchangeably and refer to the same concept is
<br />illustrated further by examining the authorities relied
<br />upon in Martinelli to support the existence of the
<br />privilege. One such authority observes, "The
<br />origins of the common law official information
<br />privilege can be traced to Kaiser Aluminum &
<br />Chemical Corp. v. United States. " Note, Discovery
<br />of Government Documents, at 156; see Martinelli,
<br />199 Colo.. at 169, 612 P.2d at 1088. "Kaiser is
<br />widely regarded as critical to the development of the
<br />deliberative process privilege." Walker & Jones,
<br />The Deliberative Process Privilege, at 287 n. 38.
<br />Another authority relied upon in Martinelli makes
<br />clear that the privilege for "official information"
<br />protects precisely the class of documents shielded by
<br />the common law executive or deliberative process
<br />privilege:
<br />[T]here remains the question whether the
<br />department or agency head may properly invoke
<br />privilege as to materials in his official custody
<br />claimed by him not to be secrets of state but
<br />something less. The answer to that question is
<br />yes.... The privilege is not automatic; it is not
<br />held to exist merely because the document or other
<br />information happens to be in governmental
<br />custody. On the other hand, it has been held
<br />applicable to interdepartmental communications,
<br />reports of agents and subordinates, advisory
<br />recommendations and departmental records and
<br />files.
<br />8 John H. Wigmore, Evidence § 2378, at 805 & n.
<br />21 (McNaughton rev. 1961) (citing Kaiser ); see
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