City of Colorado Springs v. White

• Decision Date: 23 November 1998
• Docket Number: No. 97SC685,97SC685
• Citation: 967 P.2d 1042
• Parties: 98 CJ C.A.R. 5838 CITY OF COLORADO SPRINGS and Carla L. Hartsell, Petitioners, v. David WHITE, Respondent.
• Court: Colorado Supreme Court

Page 1042

967 P.2d 1042

98 CJ C.A.R. 5838

CITY OF COLORADO SPRINGS and Carla L. Hartsell, Petitioners, v. David WHITE, Respondent.

No. 97SC685.

Supreme Court of Colorado En Banc.

Nov. 23, 1998.

Patricia K. Kelly, City Attorney, Stacy L. Rouse, Assistant City Attorney-Employment, Colorado Springs, for Petitioners.

John L. Maska, Colorado Springs, John Turner, Colorado Springs, for Respondent.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Patricia S. Bangert, Director of Legal Policy, Casey Shpall, Acting First Assistant Attorney General, Anthony S. Trumbly, Assistant Attorney General, Natural Resources Section, Denver, for Amicus Curiae State of Colorado.

Inman Flynn & Biesterfeld, P.C., Joel A. Moritz, Robert J. Thomas, Denver, for Amicus Curiae Metro Wastewater Reclamation District.

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 the meaning of the statute. ¹ 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 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), 10B 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 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.

The deliberative process privilege is unique to the government. See Coastal States Gas Corp. v. Department of Energy 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 "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.Cl. 38, 157 F.Supp. 939 (Ct.Cl.1958), and Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966). See, e.g., NLRB 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...