By Jeffrey A. Roberts
CFOIC Executive Director
An open-records lawsuit filed this week claims that Adams County improperly withheld emails concerning the impoundment of a 6-year-old pit bull that bit a mail carrier in 2014.
Aurora attorney Juliet Piccone, who specializes in animal law, is asking that county officials be ordered to show why communications about the dog and its owner are protected from disclosure under the Colorado Open Records Act (CORA).
The pit bull, named Baby, has been held at the Adams County Animal Shelter for two years. According to the complaint, filed in Adams County District Court on Monday, Piccone’s request for emails from Sept. 10, 2014, to Mar. 25, 2016, was denied in part because the records “contain materials protected by the attorney-client privilege and the work product doctrine.”
But none of the emails that Piccone received were redacted, and she has “no way of knowing what materials were withheld,” the suit says. The county “has not attempted to provide any factual justification for refusing to provide the requested communications other than listing a blanket ‘attorney client’ and ‘work product’ privilege,” the complaint adds.
CORA allows government entities to withhold “privileged information,” which may include communications between attorneys and clients in anticipation of litigation and attorneys’ work product.
Piccone’s suit argues that a government entity’s use of the attorney-client privilege “can only be evaluated by knowing who the communications were between, when the communications occurred and (the purpose) of the communications.”
In March, Piccone filed a federal lawsuit against Adams County and Northglenn on behalf of Baby’s owner, Serena Campbell, alleging that Campbell’s constitutional rights were violated when the dog was “illegally” seized and ordered destroyed.
But Piccone said the emails she requested are for a time period prior to the filing of the federal suit. She said Northglenn provided hundreds of pages of emails in response to a similar CORA request without redactions or claims of privilege.
If Adams County employees “were communicating with Northglenn, there’s no attorney-client privilege because Northglenn is not their client,” Piccone told the Colorado Freedom of Information Coalition. “If they’re communicating with each other and it’s not legal advice, that’s not attorney-client privilege.”
She said she expected the county to provide a privilege log describing the withheld records and the basis for claiming privilege.
That is a reasonable expectation, according to some court decisions in Colorado. In 2011, Larimer County District Court Judge Devin Odell ordered the Poudre School District to produce an index of documents withheld from the parents of a special education student.
The school district argued that CORA entitled the parents to a statement of the law under which access was denied “and nothing more.” But that interpretation, the judge wrote, “renders the statute meaningless. A ‘statement’ not linked to some means of identifying the particular document being withheld … is useless because it cannot be challenged by a requester or reviewed by the Court.”
In a 2003 decision, the Colorado Court of Appeals wrote, “The burden of proving the applicability of a privilege rests with the claimant of the privilege.” The appellate court in 2013 authorized governments to charge a “reasonable” fee for the generation of a privilege log.
A hearing on Piccone’s CORA lawsuit is scheduled for Oct. 3. Asked Friday about the case, Adams County spokesman Jim Siedlecki said he couldn’t discuss ongoing litigation.