The district found itself in a new position last week with a Colorado Open Records Act request. When the agenda for the 3/13/2024 board meeting went out on 3/8, I submitted a CORA request for the board packet for that meeting. These packets contain the reference materials to be presented in the board meetings; you can view the packet from the last board meeting here to get an idea. Under Colorado law requiring no more than a three-day turnaround for a request for a single document in the district’s possession, I thought this would result in me getting the board packet at least an hour before the actual meeting. Some districts make a habit out of providing board packets prior to regular meetings, as the CDE’s Board President Handbook even describes on page 12, so this request was not anything unusual.
As you know, weather prompted postponement of the meeting to the following Wednesday, 3/20. Instead of providing the board packet to me as required by law, the district sent me this message on the date the CORA request was due, 3/13:
These materials are not available under CORA because they are protected under the deliberative process privilege.
Deliberative Process Privilege is a very specific legal term, defined in Colorado law as follows:
Records protected under the common law governmental or “deliberative process” privilege, if the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government, unless the privilege has been waived.
C.R.S. § 24-72-204(3)(a)(XIII)
Is this a valid assertion? Colorado law section 24-72-202(6.5)(c) covers the definition of these work products, documents that would be not be accessible via CORA. In this case it’s quite clear, saying that work products specifically do NOT include:
(IV) Any materials that would otherwise constitute work product if such materials are produced and distributed to the members of a public body for their use or consideration in a public meeting or cited and identified in the text of the final version of a document that expresses a decision by an elected official.
24-72-202(6.5)(c)
These board packets are distributed to board members when the meeting agenda is sent out. In this case, that would be on 3/8. So by the time my CORA request was due on 3/13, the board packet had met the qualifications above and could not be considered a work product protected from disclosure.
Normally I’d hit a brick wall at this point, not interested in engaging in any legal action, especially for something as innocent-seeming as just a board packet that I know the district would release under CORA after the meeting has taken place. But by invoking ‘deliberative process privilege’, the district created a bit of a mess for themselves. The Colorado Freedom of Information Coalition pointed me to some very interesting information about this legal term. Colorado law (see C.R.S. § 24-72-204(3)(a)(XIII)) sets requirements for an entity to withhold documents, if the requestor knows the law and makes suitable requests. The first requirement is:
…the custodian shall provide the applicant with a sworn statement specifically describing each document withheld, explaining why each such document is privileged, and why disclosure would cause substantial injury to the public interest.
C.R.S. § 24-72-204(3)(a)(XIII)
I requested such a statement, and here is what the district provided to me on 3/18/2024:
Ken Witt is claiming that the board packet “constitutes the confidential deliberations of the WPSD Board of Education”. However, the board isn’t allowed to deliberate outside of public, unless and executive session is called. That’s what the Colorado Open Meetings Law is all about. So it seems he’s violating Colorado Open Records Law by using a violation of the Open Meetings Law as his excuse?