A Denver District Court judge handed a partial victory to a conservative news organization that sued the state for documents related to hospital profits.
Sherrie Peif, who writes for Complete Colorado, sued the Colorado Department of Health Care Policy and Financing for emails and other messages about price transparency, hospital profits and related matters in June 2023.
Earlier this month, Denver District Court Judge Jill Dorancy determined 29 out of 77 documents that the department withheld should be publicly disclosed, because they didn’t include deliberation on pending legislation or policies. She also allowed Peif to seek reimbursement for attorney’s fees.
Peif had requested emails and other messages about hospital financial reports between Jan. 1 and March 1, 2023, from 12 people working at the Department of Health Care Policy and Financing and the governor’s office. The department produced 324 documents, citing deliberative process for 272 others, according to the lawsuit.
In its response, the department said that the withheld documents weren’t public records because its staff had produced them as part of the process of advising lawmakers on pending bills or of producing required reports. A spokesman for the department declined to comment on the ruling.
“Without the deliberative process privilege protection, government entities will be discouraged from engaging in honest strategy and policy discussions regarding pending legislation if those discussions are to become public,” the department said in its response to the lawsuit.
The Colorado Open Records Act allows public entities to withhold deliberative documents if they are “so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government.”
Dorancy reviewed 77 documents the department had identified as protected by deliberative privilege, and found the department could withhold about 60% of them.
Peif said she was pleased to receive some of the emails, but doesn’t believe the state’s open records law should have an exemption for deliberations. Also, some of the material was no longer as useful by the end of the lawsuit as it would have been when she requested the emails last March, she said.
“Taxpayers have a right to see how the sausage is made,” she said.
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Government employees do need some room to deliberate candidly, but the exemption can be overused or misused, said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition. Some entities have used it to try to hide clearly public documents — such as informational packets given out to school board members — and in other cases, the person requesting documents has no way of knowing if the recipient applied the law correctly, he said.
“Deliberative process is kind of one of the most frustrating exemptions in CORA,” he said.
Lawsuits related to deliberative process are relatively rare, Roberts said. In 2021, a judge ordered the city of Denver to disclose a series of emails about housing policy. In a separate case, decided in January, the Department of Higher Education was allowed to withhold emails about a cyberattack under the exemption.
The statute doesn’t define what kind of discussions are too candid or personal for public disclosure, so in the rare cases when someone decides to sue, the judge overseeing the case has to make that call, Roberts said.
“It’s kind of in the eye of the beholder,” he said.
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