Reporter drops CORA lawsuit against Division of Insurance in exchange for release of emails

A reporter for the Independence Institute dropped his pro se lawsuit against the Colorado Division of Insurance after the agency agreed to provide a majority of the emails he sought regarding the one-year renewal of health insurance policies not in compliance with the Affordable Care Act.

Todd Shepherd, who runs The Complete Colorado news website, contended in his August 2014 legal action that the DOI improperly used the “deliberative process” privilege to withhold emails he requested under the Colorado Open Records Act (CORA).

That provision of CORA allows governments and state agencies to suppress records “if the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government” and disclosure “may cause substantial injury to the public interest.”

The deliberative process privilege, however, only protects material that is both deliberative and “predecisional,” meaning it was generated before the adoption of a policy or decision, according to a Colorado Supreme Court ruling. Shepherd argued that most of the emails withheld by the DOI were written after the agency finalized its decision to allow the sale of non-compliant health insurance policies through 2015.

In an article posted Saturday evening, Shepherd wrote that the newly obtained emails support the notion that the DOI, by allowing some non-compliant health plans to be sold, violated the 2013 state law that implemented the Affordable Care Act in Colorado.

Note: The Independence Institute, a libertarian think tank, is a member organization of the Colorado Freedom of Information Coalition.

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