By Jeffrey A. Roberts
CFOIC Executive Director

Three months after the Colorado Supreme Court declared the Aurora Sentinel to be a “citizen” under the open meetings law, the newspaper is back in district court in the same case trying to win the disclosure of a city council executive session recording from almost four years ago.

The Sentinel also must prove to a judge that it is the prevailing party in a lawsuit brought against Aurora councilmembers in 2022 after they decided behind closed doors to end censure proceedings against then-Councilmember Danielle Jurinsky. It cannot collect reasonable attorney fees and court costs, as the Colorado Open Meetings Law dictates, without being designated as the prevailing party.

“Insofar as The Sentinel has now, through three levels of litigation, established beyond any dispute that the City Council of Aurora violated the Colorado Open Meetings Law (COML) when it improperly convened an executive session on March 14, 2022, The Sentinel is unquestionably entitled to recover its attorney fees as the prevailing party under the COML,” says a brief filed in Arapahoe County District Court for the newspaper by attorneys Rachael Johnson and Steve Zansberg.

But in briefs filed for the city, attorney Corey Hoffmann argues that “finding The Sentinel is the prevailing party in this case and awarding it fees and costs would be … contrary to public policy, punishing the City when it correctly withheld the executive session recording under COML.”

The Colorado Court of Appeals found in 2023 that the council violated the open meetings law by inadequately announcing the executive session and by holding a roll call vote to stop the censure investigation. The Supreme Court in October did not directly address whether the Sentinel should get the full audio recording of the executive session but determined that the council did not waive the attorney-client privilege covering the closed-door meeting by releasing a special counsel’s letter about the executive session in an agenda packet. The letter discussed “factual assertions” about the Jurinsky matter, “not privileged communications,” the high court concluded.

The justices remanded the case back to the lower courts “for proceedings consistent with” its opinion, which also noted the city council’s COML violation for failing to identify the topic of the executive session in “as much detail as possible.”

“[T]he fact of a COML violation is not at issue here,” the Supreme Court wrote. “Instead, the issue before us is a narrow one: Whether The Sentinel, having brought a COML claim challenging a violation of the law, may collect attorney fees under the statute if it ultimately prevails in this case.” It can, the justices concluded, because it is a “citizen” under the open meetings law.

In a brief filed Tuesday, Johnson and Zansberg argue there is no basis for withholding the March 14 executive session recording because the open meetings law requires that a meeting be deemed “open” to the public if a public body fails to strictly adhere to the statutory requirements for convening an executive session.

“That is the very remedy ordered by the Court of Appeals; the Supreme Court did not disturb the holding that the City engaged in formal action, and explicitly recognized that the COML mandates disclosure of the recording of a meeting under these circumstances,” Johnson and Zansberg wrote. (Johnson is a Colorado-based attorney for the Reporters Committee for Freedom of the Press, and Zansberg is president of the Colorado Freedom of Information Coalition.)

Their brief also argues that Jurinsky’s presence as an “adverse party” at the March 14 meeting “destroys whatever attorney-client privilege may have attached to the discussion that occurred behind closed doors.”

Hoffmann, in briefs submitted for Aurora City Clerk Kadee Rodriguez, wrote that “the issue of a third-party presence waiver is outside the scope” of the Supreme Court’s order remanding the case to the lower courts.

He contends that the Supreme Court affirmed an earlier ruling by the district court not to release the executive session recording. The recording, Hoffmann wrote, “is subject to the attorney-client privilege, that privilege has not been waived, and the recording must therefore not be released. The Sentinel nevertheless insists that this Court review the supreme court’s finding that there was not a waiver and reach a different result.”       

“The Sentinel cannot argue that it proved a COML violation or caused the City to comply with COML, therefore it is not the prevailing party in this case and is not entitled to its fees and costs,” Hoffmann also wrote.

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