Sentinel Colorado v. Rodriguez.
2023 COA 118. No. 22CA1934. Administrative Law—Colorado Sunshine Act—Open Meetings Law—Attorney-Client Privilege.
December 7, 2023
In January 2022, The Sentinel Colorado (The Sentinel) reported that Aurora City Council Member Jurinsky appeared on a talk radio show and commented that the Aurora Police Department chief and deputy police chief were “trash” and called for their removal from office. In response to these comments, Aurora City Council Member Marcano initiated proceedings to censure Jurinsky for allegedly violating the city council’s governing rules. On March 14, the city council held a recorded executive session. The Sentinel filed a request through the City of Aurora’s (city) website seeking access to the March 14 executive session about the censure of Jurinsky. Rodriguez, the city’s records custodian, denied this request on grounds that the record being sought is a privileged attorney-client communication and is exempt from disclosure under Colorado’s Open Meetings Law (OML). The Sentinel filed a complaint against Rodriguez, in her official capacity as the city clerk and records custodian for the city. The complaint sought release of the recording of the Aurora City Council’s March 14, 2022, executive session, claiming that the city council violated the OML at that executive session. The district court ultimately found that a subsequent public city council meeting held on March 28, 2022, cured the city council’s OML violations, and it ordered the records custodian not to release the March 14 executive session recording.
On appeal, The Sentinel contended that the city council violated the OML at the March 14 executive session by giving an insufficient announcement about the executive session. Both parties agreed that the district court correctly found that the announcement of the executive session does not appear to comply with OML requirements. The court of appeals therefore concluded that the March 14 executive session announcement violated the OML public notice requirement.
The Sentinel also argued that the city council violated the OML at the March 14 executive session by taking a “roll call” vote to end pending censure proceedings, which constituted a “formal action.” The Aurora City Council Rules did not allow the city council to conduct a roll call or cast a vote to end an investigation of censure charges in an executive session. Here, the record shows that at the March 14 executive session the city council adopted a “position . . . or formal action” in deciding to end Jurinsky’s censure proceedings, in violation of the OML. Therefore, the city council violated CRS § 24-6-402(4) of the OML, and the district court clearly erred in finding that the city council’s action at the March 14 executive session was not a formal action violating the OML.
The Sentinel asserted that the city council waived any attorney-client privilege that existed in the March 14 executive session recording. Here, the city council waived any attorney-client privilege from the March 14 executive session by describing everything that occurred during this meeting in the March 28 public meeting agenda packet. Accordingly, the recording of the March 14 executive session must be released under CRS § 24-6-402(2)(d.5)(II)(C).
The Sentinel also contended that the district court erred by finding that the city council cured its OML violations when it held a regular public meeting on March 28. The OML does not explicitly allow a local public body to “cure” prior OML violations, but Colorado cases have interpreted the OML to allow a local public body to cure an improperly convened executive session by holding a subsequent open meeting to consider the matters discussed in the executive session. Here, The Sentinel only requests that the March 14 executive session recording be released; it does not challenge the validity of the city council’s decision to terminate Jurinsky’s censure proceedings. Therefore, the court of appeals declined to address whether the narrowly tailored, court-created concept of allowing a state or local public body to cure a prior violation of the OML by holding a subsequent compliant meeting applies here. Accordingly, the district court erred by finding that the March 28 public meeting cured the OML violations that occurred at the March 14 executive session.
Lastly, The Sentinel argued that it should be awarded its attorney fees. However, The Sentinel is not a “citizen” under CRS § 24-6-402(9)(b), so it is not entitled to attorney fees.
The order preventing release of the March 14 executive session recording was reversed. The records custodian must release to The Sentinel the March 14 executive session recording pertaining to Jurinsky’s censure.