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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 <br />Copyright (c) West Group 2001 No claim to original U.S. Govt. works <br />