From The Gazette (Colorado Springs):  A Monument lawyer cannot inspect two records of the Colorado Department of Public Health and the Environment, a Denver District Court judge has ruled.

That refusal by Judge Shelley J. Gilman “actually created a dangerous precedent, and we do plan to appeal,” attorney Leslie Weise said Wednesday.

The records contain 11 emails exchanged in 2013 by department staff discussing technical evaluations of whether the city has met the federal sulfur dioxide standard and the effect of SO2 emissions by the coal-fired Martin Drake Power Plant.

Gilman said the records must remain confidential to protect the government’s deliberative process privilege and ensure “honest and frank discussion within the government.”

The emails “reflect some of the predecisional deliberations on the Department’s ultimate recommendation,” the judge wrote.

The 2013 emails, though, were exchanged two years before the department staff knew that it would have to reclassify air quality standards attainment at Drake. That requirement wasn’t imposed until March 2015, in the settlement of a lawsuit filed by the Sierra Club and National Resources Defense Council against the U.S. Environmental Protection Agency.

“It was not pre-decisional of anything. It was for a decision they didn’t know about at the time. It’s very disappointing,” Weise said. “She writes the obvious inconsistency that it was for a decision that wasn’t to be made for two years. She left out the part that they didn’t know they would have to even make it, and thus bought right into CDPHE’s position.”

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