DiPietro v. Coldiron

• Decision Date: 13 October 2022
• Docket Number: Court of Appeals Nos. 22CA0740 & 22CA0815
• Citation: 523 P.3d 1019,2022 COA 121
• Parties: Michele DIPIETRO, Plaintiff-Appellee, v. Delynn COLDIRON, in her official capacity; Moses Garcia, in his official capacity; and the City of Loveland, Colorado, Defendants-Appellants.
• Court: Colorado Court of Appeals

523 P.3d 1019

2022 COA 121

Michele DIPIETRO, Plaintiff-Appellee,

v.Delynn COLDIRON, in her official capacity; Moses Garcia, in his official capacity; and the City of Loveland, Colorado, Defendants-Appellants.

Court of Appeals Nos. 22CA0740 & 22CA0815

Colorado Court of Appeals, Division A.

Announced October 13, 2022

Law Office of Troy D. Krenning, Troy D. Krenning, Loveland, Colorado, for Plaintiff-Appellee

Hoffmann, Parker, Wilson & Carberry, P.C., Corey Y. Hoffmann, Kendra L. Carberry, Daniel P. Harvey, Denver, Colorado, for Defendants-Appellants

Robert D. Sheesley, Rachel Bender, Denver, Colorado, for Amicus Curiae Colorado Municipal League

Opinion by JUDGE YUN

¶ 1 This C.A.R. 4.2 interlocutory appeal asks us to decide whether records protected by the attorney-client privilege or the deliberative process privilege are nevertheless subject to disclosure to a "person in interest" under the Colorado Open Records Act (CORA). We conclude that they are not subject to disclosure and, therefore, reverse the district court's orders.

I. Background

¶ 2 Plaintiff, Michele DiPietro, was a paralegal for the Loveland City Attorney's Office. After DiPietro's employment ended, she made CORA requests for records in which she was the "person in interest" — the subject of the records. Defendants, Delynn Coldiron (the Loveland City Clerk) and Moses Garcia (the Loveland City Attorney), in their official capacities, and the City of Loveland (collectively, the City), notified DiPietro that, pursuant to CORA, the City was withholding some emails that involved her because they fell under the deliberative process privilege or the attorney-client privilege.

¶ 3 DiPietro then filed an application for an order to show cause why the City should not allow DiPietro to inspect the records under CORA. DiPietro also asked for (1) a declaratory judgment that the City of Loveland's open records regulation, which dictates the City's administrative and procedural responses to CORA requests, violates state law; and (2) injunctive relief permanently precluding the City from enforcing that regulation.¹

¶ 4 The City moved for an in camera review of the withheld emails and "judgment in favor of defendants and against plaintiff, denying DiPietro's application for an order to show cause." After the district court reviewed the withheld emails in camera, it issued two orders: one requiring the City to disclose the emails protected by the attorney-client privilege and the other requiring the City to disclose the emails protected by the deliberative process privilege. In both orders, the court found that, although the privileges applied to the records at issue, DiPietro was entitled to inspect those emails because section 24-72-204(3)(a), C.R.S. 2022, unambiguously requires disclosure to the "person in interest."

¶ 5 The City now appeals both orders.

II. Jurisdiction

¶ 6 Before addressing the merits of the City's appeal, we explain why interlocutory review of the district court's orders is appropriate.

¶ 7 Under section 13-4-102.1(1), C.R.S. 2022, and C.A.R. 4.2(b), we may grant interlocutory review of orders in a civil case when the district court certifies and we agree that "(1) immediate review may promote a more orderly disposition or establish a final disposition of the litigation; (2) the order[s] involve[ ] a controlling question of law; and (3) that question of law is unresolved." Affiniti Colo., LLC v. Kissinger & Fellman, P.C. , 2019 COA 147, ¶ 12, 461 P.3d 606. The district court has certified this case for interlocutory appeal, so we address each requirement in turn.

¶ 8 First, our review will promote a more orderly disposition because the district court's orders are central to the litigation as a whole. See id. at ¶ 16 (concluding that interlocutory review is appropriate when it would "directly affect the court's resolution" of an issue in the litigation). Moreover, "the damage that could result from the disclosure of the privileged communications could not be undone on direct appeal." Id. at ¶ 15 ; see also People v. Bloom , 193 N.Y. 1, 85 N.E. 824, 826 (1908) ("[W]hen a secret is out, it is out for all time, and cannot be caught again like a bird, and put back in its cage.").

¶ 9 Second, the challenged orders involve a controlling issue of law because the question of whether DiPietro is entitled to disclosure (1) directly affects her claim for relief on the application for an order to show cause under section 24-72-204(5) ; and (2) has widespread public interest, as "novel attorney-client privilege issues are issues of ‘great significance to our legal system.’ " Affiniti , ¶ 19 (quoting Wesp v. Everson , 33 P.3d 191, 194 (Colo. 2001) ); see also Kowalchik v. Brohl , 2012 COA 25, ¶ 15, 277 P.3d 885 (concluding that an order involved a controlling issue of law because it was potentially case-dispositive and "[t]he challenged order present[ed] issues of widespread public interest").

¶ 10 Finally, the issue of whether privileged information must be disclosed to a person in interest under CORA is one of first impression in Colorado courts. See Affiniti , ¶ 14.

¶ 11 Accordingly, we conclude that our review of the City's appeal is appropriate under section 13-4-102.1 and C.A.R. 4.2(b).

III. Analysis

¶ 12 We turn next to the merits of the City's interlocutory appeal.

A. Standard of Review and Principles of Statutory Interpretation

¶ 13 We review issues of statutory interpretation de novo. Denver Post Corp. v. Ritter , 255 P.3d 1083, 1088 (Colo. 2011).

¶ 14 "In construing a statute, our primary purpose is to ascertain and give effect to the legislature's intent." McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379. "To do so, we look first to the language of the statute, giving its words and phrases their plain and ordinary meanings." Id. "We read statutory words and phrases in context, and we construe them according to the rules of grammar and common usage." Id.

¶ 15 "We must also endeavor to effectuate the purpose of the legislative scheme." Id. at ¶ 38. "In doing so, we read that scheme as a whole, giving consistent, harmonious, and sensible effect to all of its parts, and we must avoid constructions that would render any words or phrases superfluous or lead to illogical or absurd results." Id.

B. CORA

¶ 16 Through the passage of CORA, sections 24-72-200.1 to - 205.5, C.R.S. 2022, the General Assembly declared that "all public records shall be open for inspection by any person at reasonable times, except as ... provided by law." § 24-72-201, C.R.S. 2022; see Jefferson Cnty. Educ. Ass'n v. Jefferson Cnty. Sch. Dist. R-1 , 2016 COA 10, ¶ 14, 378 P.3d 835 ("CORA's clear language creates a strong presumption in favor of disclosing records."). Thus, "[u]nder CORA, the custodian of a public record is generally required to make that record available to the public, subject to certain exceptions." Ritter , 255 P.3d at 1089.

¶ 17 Those exceptions are codified in CORA. As relevant here, section 24-72-204(3)(a) provides as follows:

The custodian shall deny the right of inspection of the following records, unless otherwise provided by law; except that the custodian shall make any of the following records , other than letters of reference concerning employment, licensing, or issuance of permits, available to the person in interest in accordance with this subsection (3) ....

(Emphasis added.) A "person in interest," in turn, is defined as "the person who is the subject of a record or any representative designated by said person." § 24-72-202(4), C.R.S. 2022.

¶ 18 As mentioned above, this appeal concerns two categories of records under subsection (3): (1) records that fall within the deliberative process privilege, section 24-72-204(3)(a)(XIII), and (2) records that fall within the attorney-client privilege, section 24-72-204(3)(a)(IV).

¶ 19 The law is well settled that records falling within these two categories are not subject to public inspection under CORA. See Bjornsen v. Bd. of Cnty. Comm'rs , 2019 COA 59, ¶ 54, 487 P.3d 1015 ("Privileged information, including information falling under the attorney-client privilege, is not subject to public inspection under the CORA."); Land Owners United, LLC v. Waters , 293 P.3d 86, 95 (Colo. App. 2011) ("[T]he General Assembly ... add[ed] a statutory deliberative process privilege to CORA's list of exemptions to disclosure.").

¶ 20 Still, no Colorado appellate case has addressed the question confronted by the district court here: Is a custodian required to disclose records that fall within the deliberative process privilege or the attorney-client privilege to a "person in interest" under section 24-72-204(3)(a) ?²

C. Discussion

¶ 21 We conclude that the district court erred because (1) the plain language of CORA exempts from disclosure records protected by the deliberative process privilege and the attorney-client privilege and (2) the district court's contrary interpretation of CORA leads to an absurd result.

1. The Plain Language of CORA Does Not Compel Disclosure of Privileged Records to a "Person in Interest"

¶ 22 The district court concluded that a custodian is required to disclose records that fall within the deliberative process privilege and the attorney-client privilege to a person in interest. It found that the plain language of section 24-72-204(3)(a) is clear: the custodian "shall make any of the following records," including records otherwise protected by the deliberative process privilege or the attorney-client privilege, "available to the person in interest in accordance with this subsection (3)." According to the court, "[t]he exception to public disclosure is limited by subsection (3)(a)’s over-arching requirement of disclosure to a person in interest."

¶ 23 But the district court's interpretation does not give effect to the phrase "in accordance with this subsection (3)" or explain what that phrase means. See McBride v. People , 2022 CO 30, ¶ 23, 511 P.3d 613 (When interpreting a statute "we avoid constructions that would...