Open-records lawsuit ends, but questions remain

From The Colorado Springs Business Journal:  “What am I supposed to do now?” Leslie Weise asked Tuesday morning at a downtown coffeehouse.

She was still fuming about the latest roadblock in her ongoing attempts to obtain information from Colorado Springs Utilities. In an earlier email, Weise had shared the bad news: She’d lost in court.

The object of her open-records quest that was first denied by CSU and then by local courts: a written report and PowerPoint presentation prepared by AECOM Technical Services, which, using raw (and publicly available) emissions data from the Martin Drake downtown power plant, developed “certain air quality information.” That information, Weise believes, ought to be publicly available.

“In my open-records petition,” she wrote, “Judge [Edward] Colt has ruled that utilities’ lawyers could in fact use the attorney-client privilege to shield the public from being able to access air quality information concerning an EPA [Environmental Protection Agency] review of the Martin Drake Plant. Drake was identified as one of the two most polluting plants in the state subject to this review, yet utilities has chosen to keep this critical information, concerning whether it is in compliance with safe levels of sulfur dioxide emitted from the plant, from its own ratepayers and the very public that breathes this air…”

The judge saw the issues differently.

“The court finds that CSU reasonably anticipated litigation and adversary proceedings to be held before administrative agencies,” Colt wrote in his decision. “CSU has carried its burden to show that the information at issue in this case was requested by its lawyer in order to prepare for such litigation and adversary proceedings, and that the information was used for these purposes, not for its regular business purposes … the court finds that the information at issue in this case was properly withheld by CSU under the provisions of the Colorado Open Records Act which protect privileged information, such as in this case attorney-client and attorney work product.”

Colt also noted that in issues yet to be decided by the state’s Air Quality Control Commission and the EPA, “based on the past position of the parties … it is clear that [Weise] will urge a different classification of the power plant than the designation which will be urged by [CSU].”

Weise and Colt might both be right.

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