The Colorado Court of Appeals issued its opinion in Land Owners United, LLC v. Waters on August 18, 2011.
Colorado Open Records Act—Investigatory Files Exemption—Deliberative Process Privilege—Confidential Information Exemption.
Defendants Marcia Waters, director of the Colorado Division of Real Estate, and the Colorado Board of Real Estate Appraisers (collectively, the Board) appealed from the district court order requiring disclosure of certain records under the Colorado Open Records Act (CORA). The order was affirmed.
Land Owners United, LLC (Land Owners) made a series of CORA requests seeking records pertaining to the proceedings involving two appraisers, Milenksi and Stroh, who were both disciplined by the Board. It also sought information relating to the Board’s investigation into allegations of abuse of Colorado’s conservation easement program.
On appeal, the Board contended that the district court erred by (1) holding that the investigatory files exemption, the deliberative process privilege, and the confidential information exemption did not justify withholding disclosure of the records; (2) ordering redaction of specified information; and (3) awarding attorney fees to Land Owners. CORA allows access to all public records not specifically exempted by law. The CORA exemption for investigatory files applies only to those investigatory files compiled for criminal law enforcement purposes. Accordingly, the investigatory files exemption of CORA does not protect the records sought in this case.
A key question in determining whether the deliberative process privilege applies is whether disclosure of the material would expose an agency’s decision-making process in such a way as to discourage discussion within the agency and thereby undermine its ability to perform its functions. Here, the district court did not abuse its discretion when it rejected the Board’s assertion of the deliberative process privilege in recognizing the potential effect the discipline of appraisers could have on Land Owners and finding that the public interest outweighed the deliberative process of the Board. Finally, the records at issue here do not fall within the definition of confidential records, which includes “trade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data . . . furnished by or obtained from any person.” The court’s order to redact certain confidential information further protected the Board’s interests in this matter.