Chapter 12 - § 12.9 • DELIBERATIVE PROCESS PRIVILEGE

• Jurisdiction: Colorado

§ 12.9 • DELIBERATIVE PROCESS PRIVILEGE

Colorado courts recognize the common law deliberative process privilege, which may be asserted only by governmental officials. City of Colorado Springs v. White, 967 P.2d 1042, 1047, 1050-51, 1058 (Colo. 1998) (discussing the history, development, and purpose of the privilege and adopting it as part of the common law of Colorado). "The privilege rests on the ground that public disclosure of certain communications would deter the open exchange of opinions and recommendations between government officials, and it is intended to protect the government's decision-making process, its consultative functions, and the quality of its decisions." Id. at 1047 (citing Capital Info. Grp. v. Alaska, 923 P.2d 29, 33 (Alaska 1996) (internal citations omitted)). The deliberative process privilege has also been referred to as the "governmental privilege," "official information privilege," and "common law executive privilege." White, 967 P.2d at 1048-49. The latter stands in contrast to the constitutionally based executive privilege (also known as the "state secrets" or "presidential communications privilege"), which is premised on the principle of separation of powers. Id. at 1047-48 (citing United States v. Nixon, 418 U.S. 683, 703 (1974)).

Despite its common law origin, the deliberative process privilege is well known in the context of federal cases brought pursuant to the Freedom of Information Act (FOIA), as this privilege is incorporated as "Exemption 5" in the FOIA, 5 U.S.C. § 552(b)(5) (1994). Id. at 1049 (citing a number of examples of such cases).

The deliberative process privilege is a qualified privilege, meaning that it "applies in a particular instance if the purposes of the privilege are thereby served"; its purposes include serving:

to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

White, 967 P.2d at 1051 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

As a result, the operative...