Court recognizes deliberative process privilege for government

COLORADO–The state Supreme Court in Denver expressly recognized the existence of a”deliberative process” privilege in a decision in late November.

The privilege exempts from disclosure materials that reveal the mental processes of governmental officials generated prior to reaching a decision. Materials containing post-decisional analyses or that do not reveal the “give and take” of decision-making are not privileged.

Writing for a unanimous court, Justice Alex Martinez noted that the privilege is intended to promote the open exchange of opinions between governmental officials and to protect the quality of governmental decision-making. The privilege typically covers “recommendations, advisory opinions, draft documents, proposals, suggestions and other subjective documents that reflect the personal opinions of the writer rather than the policy of the agency,” Martinez wrote.

However, the court noted that the privilege is a qualified one. Taking its lead from the federal open records case law and state common law, the court held that the privilege protects material that is “predecisional” and “deliberative” in nature. Documents produced after a decision and designed to explain it are not privileged, it noted.

The court held that the government bears the initial burden of proof in asserting the privilege and must meet a series of technical requirements. Furthermore, the privilege may be overcome if the requester can show an interest in disclosure greater than the government’s interest in confidentiality, it added.

The case arose when respondent David White requested copies of materials in the possession of the Community Services Department of the City of Colorado Springs. Among the materials he sought was a evaluative report created by an outside consultant at the behest of the department head. The records custodian denied White access to the report on the grounds that it was privileged under the governmental deliberative process privilege.

White then applied for an order to show cause why the report should not be released and challenged the existence of the deliberative process privilege in Colorado. After recognizing the privilege’s existence, the trial court discharged the order and found that the state open records laws excepted the report from disclosure. The court of appeals reversed the decision.

The high court noted that although the report was a public record, it contained an evaluation of governmental policies and working conditions, along with suggestions for improvement. Because the report was designed to guide the government in developing strategies for improving a troubled division, the court determined that it was both predecisional and deliberative in nature and was therefore privileged. (City of Colorado Springs v. White; Media Counsel: John L. Maska, Colorado Springs)