deliberative process privilege in Colorado

2025See City of Colorado Springs v. White, 967 P.2d 1042, 1050 (Colo. 1998) (concluding that the deliberative process privilege is part of the common law of Colorado). ¶ 15 The Castillos asked the district court to modify portions of SMO3 to permit the public release of certain documents that the special master had concluded were protected from disclosure.

2025Water Conservation Dist., 74 P.3d 462, 468 (Colo. App. 2003) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the attorney-client privilege in a CORA case); City of Colorado Springs v. White, 967 P.2d 1042, 1057 (Colo. 1998) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the deliberative process privilege in a CORA case); see also Land Owners United, LLC v. Waters, 293 P.3d 86 , 95 4 (Colo. App. 2011) (“When reviewing matters of discovery and privilege, we apply an abuse of discretion st

2025As we’ve indicated, the deliberative process privilege extends to “factual material that is ‘so inextricably intertwined with the deliberative sections of the documents that its disclosure would inevitably reveal the government’s deliberations.’” Id. at 1052 (quoting In re Sealed Case, 121 F.3d at 737 ). 19 ¶ 39 And third, the trial court decided, as a matter of its discretion, that “the [Board’s] interest in keeping the material confidential, to avoid the chilling effect that is not merely speculative, outweighs the [Association’s] interest in disclosure of the materials.” Weighing the factor

1998The following names have been used interchangeably (if not always precisely): “executive privilege,” “deliberative process privilege,” “governmental privilege,” and “official information privilege.” See, e.g., In re Sealed Case, 121 F.3d at 736 (noting that “the most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege”); Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616 (D.C.Cir.1997) (noting that deliberative process privilege is “a variant of executive privilege”); Wolfe v. Department of Health & Human Servs., 839 F.2d 768, 773 (D.C

2025Water Conservation Dist., 74 P.3d 462, 468 (Colo. App. 2003) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the attorney-client privilege in a CORA case); City of Colorado Springs v. White, 967 P.2d 1042, 1057 (Colo. 1998) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the deliberative process privilege in a CORA case); see also Land Owners United, LLC v. Waters, 293 P.3d 86 , 95 4 (Colo. App. 2011) (“When reviewing matters of discovery and privilege, we apply an abuse of discretion st

2025See Land Owners United, 293 P.3d at 95-96 . ¶ 27 The deliberative process privilege is a qualified privilege aimed at “protect[ing] the frank exchange of ideas and opinions critical to 12 the government’s decisionmaking process where disclosure would discourage such discussion in the future.” White, 967 P.2d at 1051 .

2025Water Conservation Dist., 74 P.3d 462, 468 (Colo. App. 2003) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the attorney-client privilege in a CORA case); City of Colorado Springs v. White, 967 P.2d 1042, 1057 (Colo. 1998) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the deliberative process privilege in a CORA case); see also Land Owners United, LLC v. Waters, 293 P.3d 86 , 95 4 (Colo. App. 2011) (“When reviewing matters of discovery and privilege, we apply an abuse of discretion st

2020White, 967 P.2d at 1053-54 ; cf. Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 369 (4th Cir. 2009) (“Without revealing any facts about the documents’ contents, the Agencies have merely asserted their conclusion that the document is exempt, employing general language associated with the deliberative process privilege.”); Campaign for Responsible Transplantation v. U.S. Food & 9 “A Vaughn index is the FOIA equivalent of a [C.R.C.P. 26(b)(5)(A) litigation] privilege log.” Rocky Mountain Wild v. U.S. Bureau of Land Mgmt., No. 18-CV-0314-WJM-STV, 2020 WL 1333087 , at *6 (D.

2020Colo. Mar. 23, 2020). 10This requirement is substantially identical to the COML, which requires a description of the particular matter “in as much detail as possible without compromising the purpose for which the executive session is authorized.” § 24-6-402(3)(a), C.R.S. 2019. 14 Drug Admin., 219 F. Supp. 2d 106, 112 (D.D.C. 2002) (Short descriptions that “only provide a vague hint at the possible contents,” such as “Internal Memo RE: Xeno,” are insufficient.). ¶ 26 A proper Vaughn index regarding attorney-client privilege typically includes the author’s name, the recipient’s name, and some de

1998Accordingly, we reverse the judgment of the court of appeals in White v. City of Colorado Springs, 950 P.2d 637 (Colo.App.1997).

1998The court acknowledged that federal authority recognizes a deliberative process privilege, but found “no corollary authority in Colorado law.” Id.

1998The following names have been used interchangeably (if not always precisely): “executive privilege,” “deliberative process privilege,” “governmental privilege,” and “official information privilege.” See, e.g., In re Sealed Case, 121 F.3d at 736 (noting that “the most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege”); Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616 (D.C.Cir.1997) (noting that deliberative process privilege is “a variant of executive privilege”); Wolfe v. Department of Health & Human Servs., 839 F.2d 768, 773 (D.C

1998Group, 923 P.2d at 34 (holding that “executive privilege ... encompasses what other commentators have called the deliberative process privilege” and considering the terms synonymous); Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 , 283 Cal.Rptr. 893 , 813 P.2d 240 , 248 n. 10 (Cal.1991) (noting that “[t]he terms ‘executive privilege’ and ‘deliberative process privilege’ refer to the same concept” and using terms interchangeably); Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782 (Del.Super.Ct.1995) (noting “executive privilege” also referred to as “official information privilege” or “d

1998Group, 923 P.2d at 34 (holding that “executive privilege ... encompasses what other commentators have called the deliberative process privilege” and considering the terms synonymous); Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 , 283 Cal.Rptr. 893 , 813 P.2d 240 , 248 n. 10 (Cal.1991) (noting that “[t]he terms ‘executive privilege’ and ‘deliberative process privilege’ refer to the same concept” and using terms interchangeably); Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782 (Del.Super.Ct.1995) (noting “executive privilege” also referred to as “official information privilege” or “d

1998See Coastal States Gas Corp. v. Department of Energy, *1047 617 F.2d 854, 866 (D.C.Cir.1980).

1998Finally, in addition to assessing whether the material is prédecisional and deliberative, and in order to determine if disclosure of the material is likely to adversely affect the purposes of the privilege, courts inquire whether “the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.” Coastal States, 617 F.2d at 866 ; see also Van Aire Skyport Corp. v. Federal Aviation Admin., *1053 733 F.Supp. 316, 320 (D.Colo.1990). 9 As a consequence, the deliberative process privilege typically covers recom

1998The following names have been used interchangeably (if not always precisely): “executive privilege,” “deliberative process privilege,” “governmental privilege,” and “official information privilege.” See, e.g., In re Sealed Case, 121 F.3d at 736 (noting that “the most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege”); Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616 (D.C.Cir.1997) (noting that deliberative process privilege is “a variant of executive privilege”); Wolfe v. Department of Health & Human Servs., 839 F.2d 768, 773 (D.C

1998See, e.g., Sears, 421 U.S. at 150 , 95 S.Ct. 1504 ; Taxation with Representation Fund, 646 F.2d at 677 ; Coastal States, 617 F.2d at 866 .

1998The following names have been used interchangeably (if not always precisely): “executive privilege,” “deliberative process privilege,” “governmental privilege,” and “official information privilege.” See, e.g., In re Sealed Case, 121 F.3d at 736 (noting that “the most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege”); Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616 (D.C.Cir.1997) (noting that deliberative process privilege is “a variant of executive privilege”); Wolfe v. Department of Health & Human Servs., 839 F.2d 768, 773 (D.C

1998The deliberative process privilege protects factual material that is “so inextricably intertwined with the deliberative sections of the documents that its disclosure would inevitably reveal the government’s deliberations.” In re Sealed Case, 121 F.3d at 737 ; see Mink, 410 U.S. at 87-91 , 93 S.Ct. 827 ; Wolfe, 839 F.2d at 774 .

1998This stems from the fact that Congress incorporated the deliberative process privilege into the FOIA by way of “Exemption 5,” 5 U.S.C. § 552 (b)(5) (1994). 4 See, e.g., Sears, 421 U.S. at 150 , 95 S.Ct. 1504 ; Environmental Protection Agency v. Mink, 410 U.S. 73, 86 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973); Schell v. United States Dep’t of Health & Human Servs., 843 F.2d 933, 939 (6th Cir.1988); Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 256 (D.C.Cir.1977); Vaughn II, 523 F.2d at 1146 .

1998See Schell, 843 F.2d at 940 ; Dudman Communications Corp. v. Department of Air Force, 815 F.2d 1565, 1568 (D.C.Cir.1987); see also Martinelli, 199 Colo. at 171 , 612 P.2d at 1089 (holding that whether privilege applies depends upon “the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure”).

1998See Schell, 843 F.2d at 940 ; Dudman Communications Corp. v. Department of Air Force, 815 F.2d 1565, 1568 (D.C.Cir.1987); see also Martinelli, 199 Colo. at 171 , 612 P.2d at 1089 (holding that whether privilege applies depends upon “the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure”).

1998This stems from the fact that Congress incorporated the deliberative process privilege into the FOIA by way of “Exemption 5,” 5 U.S.C. § 552 (b)(5) (1994). 4 See, e.g., Sears, 421 U.S. at 150 , 95 S.Ct. 1504 ; Environmental Protection Agency v. Mink, 410 U.S. 73, 86 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973); Schell v. United States Dep’t of Health & Human Servs., 843 F.2d 933, 939 (6th Cir.1988); Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 256 (D.C.Cir.1977); Vaughn II, 523 F.2d at 1146 .

1998This stems from the fact that Congress incorporated the deliberative process privilege into the FOIA by way of “Exemption 5,” 5 U.S.C. § 552 (b)(5) (1994). 4 See, e.g., Sears, 421 U.S. at 150 , 95 S.Ct. 1504 ; Environmental Protection Agency v. Mink, 410 U.S. 73, 86 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973); Schell v. United States Dep’t of Health & Human Servs., 843 F.2d 933, 939 (6th Cir.1988); Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 256 (D.C.Cir.1977); Vaughn II, 523 F.2d at 1146 .

1998The following names have been used interchangeably (if not always precisely): “executive privilege,” “deliberative process privilege,” “governmental privilege,” and “official information privilege.” See, e.g., In re Sealed Case, 121 F.3d at 736 (noting that “the most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege”); Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 616 (D.C.Cir.1997) (noting that deliberative process privilege is “a variant of executive privilege”); Wolfe v. Department of Health & Human Servs., 839 F.2d 768, 773 (D.C

1998“By ‘common sense-common law privilege,’ ” the court explained, “we mean what is usually referred to as ‘executive privilege,’ shorn of any constitutional overtones of separation of powers.” Id.; see also Sears, 421 U.S. at 150-51 & n. 17, 95 S.Ct. 1504 (noting that common law executive privilege protecting “the decision making processes of government agencies” is distinct from constitutionally based executive privilege discussed in Nixon ). 3 Hence, the deliberative process privilege has often been referred to as the common law executive privilege.

1998“By ‘common sense-common law privilege,’ ” the court explained, “we mean what is usually referred to as ‘executive privilege,’ shorn of any constitutional overtones of separation of powers.” Id.; see also Sears, 421 U.S. at 150-51 & n. 17, 95 S.Ct. 1504 (noting that common law executive privilege protecting “the decision making processes of government agencies” is distinct from constitutionally based executive privilege discussed in Nixon ). 3 Hence, the deliberative process privilege has often been referred to as the common law executive privilege.

1998See Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032 (6th Cir.1972); Soucie, 448 F.2d at 1078 n. 44; Walker & Jones, The Deliberative Process Privilege, at 300.

1998This stems from the fact that Congress incorporated the deliberative process privilege into the FOIA by way of “Exemption 5,” 5 U.S.C. § 552 (b)(5) (1994). 4 See, e.g., Sears, 421 U.S. at 150 , 95 S.Ct. 1504 ; Environmental Protection Agency v. Mink, 410 U.S. 73, 86 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973); Schell v. United States Dep’t of Health & Human Servs., 843 F.2d 933, 939 (6th Cir.1988); Mead Data Cent., Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 256 (D.C.Cir.1977); Vaughn II, 523 F.2d at 1146 .

1998See Coastal States, 617 F.2d at 868 ; Mead Data Cent., 566 F.2d at 251 ; Vaughn II, 523 F.2d at 1146 ; Walker & Jones, The Deliberative Process Privilege, at 300.

1998Further, the Petitioners allege that the deliberative process privilege, and the policies which support its existence, have already been recognized under a different name by this court in Martinelli v. District Court, 199 Colo. 163 , 612 P.2d 1083 (1980).

1998Further, the Petitioners allege that the deliberative process privilege, and the policies which support its existence, have already been recognized under a different name by this court in Martinelli v. District Court, 199 Colo. 163 , 612 P.2d 1083 (1980).

1998Group, 923 P.2d at 34 (holding that “executive privilege ... encompasses what other commentators have called the deliberative process privilege” and considering the terms synonymous); Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 , 283 Cal.Rptr. 893 , 813 P.2d 240 , 248 n. 10 (Cal.1991) (noting that “[t]he terms ‘executive privilege’ and ‘deliberative process privilege’ refer to the same concept” and using terms interchangeably); Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782 (Del.Super.Ct.1995) (noting “executive privilege” also referred to as “official information privilege” or “d

1998Group, 923 P.2d at 34 (holding that “executive privilege ... encompasses what other commentators have called the deliberative process privilege” and considering the terms synonymous); Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 , 283 Cal.Rptr. 893 , 813 P.2d 240 , 248 n. 10 (Cal.1991) (noting that “[t]he terms ‘executive privilege’ and ‘deliberative process privilege’ refer to the same concept” and using terms interchangeably); Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782 (Del.Super.Ct.1995) (noting “executive privilege” also referred to as “official information privilege” or “d

1998Group, 923 P.2d at 34 (holding that “executive privilege ... encompasses what other commentators have called the deliberative process privilege” and considering the terms synonymous); Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 , 283 Cal.Rptr. 893 , 813 P.2d 240 , 248 n. 10 (Cal.1991) (noting that “[t]he terms ‘executive privilege’ and ‘deliberative process privilege’ refer to the same concept” and using terms interchangeably); Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782 (Del.Super.Ct.1995) (noting “executive privilege” also referred to as “official information privilege” or “d

1998Group, 923 P.2d at 34 (holding that “executive privilege ... encompasses what other commentators have called the deliberative process privilege” and considering the terms synonymous); Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 , 283 Cal.Rptr. 893 , 813 P.2d 240 , 248 n. 10 (Cal.1991) (noting that “[t]he terms ‘executive privilege’ and ‘deliberative process privilege’ refer to the same concept” and using terms interchangeably); Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782 (Del.Super.Ct.1995) (noting “executive privilege” also referred to as “official information privilege” or “d

1998Finally, in addition to assessing whether the material is prédecisional and deliberative, and in order to determine if disclosure of the material is likely to adversely affect the purposes of the privilege, courts inquire whether “the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.” Coastal States, 617 F.2d at 866 ; see also Van Aire Skyport Corp. v. Federal Aviation Admin., *1053 733 F.Supp. 316, 320 (D.Colo.1990). 9 As a consequence, the deliberative process privilege typically covers recom

1998Those early eases that are generally considered critical to the development of the privilege in this country, and to our discussion, include Morgan v. United States, 304 U.S. 1, 18 , 58 S.Ct. 773 , 82 L.Ed. 1129 (1938), Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct.Cl. 38 , 157 F.Supp. 939 (Ct.Cl.1958), and Carl Zeiss Stiftung v. V.E.B.

1998Those early eases that are generally considered critical to the development of the privilege in this country, and to our discussion, include Morgan v. United States, 304 U.S. 1, 18 , 58 S.Ct. 773 , 82 L.Ed. 1129 (1938), Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct.Cl. 38 , 157 F.Supp. 939 (Ct.Cl.1958), and Carl Zeiss Stiftung v. V.E.B.