DiPietro v. Coldiron.
2022 COA 121. Nos. 22CA0740 & 22CA0815. Colorado Open Records Act—Denial of Records Inspections—Attorney-Client Privilege—Deliberative Process Privilege—Person in Interest.
October 13, 2022
DiPietro was a paralegal for the Loveland City Attorney’s Office. After her employment ended, she made a request under the Colorado Open Records Act (CORA) for records in which she was the “person in interest” (i.e., the subject of the records). The Loveland city clerk, the Loveland city attorney, 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 were subject to the deliberative process privilege or the attorney-client privilege. DiPietro applied for an order to show cause why the City should not allow her to inspect the records under CORA. The City moved for an in camera review of the withheld emails and a judgment denying DiPietro’s application for a show cause order. After reviewing the emails, the district court issued orders requiring the City to disclose the records to DiPietro. It found that although both privileges apply to the records at issue, CRS § 24-72-204(3)(a) unambiguously requires disclosure to the “person in interest.”
On interlocutory appeal, the issue was whether a “person in interest” under CORA has a right to inspect records otherwise protected by the attorney-client privilege or the deliberative process privilege. CRS § 24-72-204(3)(a) provides that a records custodian must deny the right of inspection of specified records but must make certain records available to a person in interest under subsection (3). Thus, disclosure of records in subsection (3) to a person in interest must conform with the entire subsection’s requirements, some of which do not specifically allow disclosure to a person in interest. CRS § 24-72-204(3)(a)(IV), which covers records protected by the attorney-client privilege, does not carve out an exception for a “person in interest.” Further, CRS § 24-72-204(1) specifically exempts from disclosure any records protected by the attorney-client privilege. Therefore, a person in interest is not entitled to disclosure of records protected by the attorney-client privilege.
Regarding the deliberative process privilege, nothing in CRS § 24-72-204(3)(a)(XIII) permits disclosure of records protected by the deliberative process privilege to a person in interest when disclosure would harm the public interest. Here, the district court found that the records at issue were protected by the deliberative process privilege, stating that the emails contained “frank discussions that, if disclosed to the public writ large, would chill open discussion of these matters over regular channels of communication.” Accordingly, the district court erred by concluding that the custodian was required to disclose the records to a person in interest.
Further, to conclude that records protected by the attorney-client privilege or the deliberative process privilege are nevertheless subject to disclosure to any person who is the subject of the records at issue would directly contradict the General Assembly’s express intent in creating exceptions to CORA disclosures and thus produce an absurd result.
The orders were reversed and the case was remanded with directions to resolve the remaining claims.