Withheld records about Denver housing advisory committee do not reveal ‘give and take’ and must be disclosed, judge rules

By Jeffrey A. Roberts
CFOIC Executive Director

A judge Monday ordered Denver Mayor Michael Hancock’s office to publicly disclose all but four pages of withheld emails about an advisory group formed to examine single-family housing rules.

The mayor’s office had invoked the deliberative process privilege in the Colorado Open Records Act (CORA) to deny Florence Sebern’s request for documents concerning the Group Living Advisory Committee, and it had claimed the records were protected by attorney-client privilege.

But Denver District Court Judge Michael Vallejos, who examined the emails and attachments in private, determined that most do not reveal a “give and take” and, therefore, are not deliberative. While meetings about the committee and its formation “may have had plenty of robust deliberation, those were verbal and not reduced to writing or a transcript,” the judge wrote.

Denver city building

And even though an assistant city attorney was included in the email exchanges, the attorney-client privilege doesn’t apply because the messages “don’t reflect that the sender was either seeking legal advice, or that legal advice was returned,” Vallejos decided.       

The deliberative process privilege in CORA requires state and local government entities to withhold certain records “if the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion with the government.” A government records custodian who invokes the privilege must explain why disclosure of the records “would cause substantial injury to the public interest.”

The privilege, Vallejos noted, “serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism.” It also protects against the premature disclosure of proposed policies and against “confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.”

But many of the nearly 50 pages requested by Sebern contain information such as “agendas, objectives and plans for meetings.” While the documents include some discussion of zoning issues, Vallejos wrote he is “hard-pressed to understand how the City, its employees, or future committee members would be stifled from robust discussion of proposed city projects because these documents do not contain candid or personal material … It is also hard to understand how disclosure of the attachments would ‘cause substantial injury to the public interest.’”

The Denver City Council is expected to take up proposed group living code changes early this year. The Group Living Advisory Committee initially suggested increasing the number of unrelated adults who can legally share a single-family home from two to at least eight, but the number was reduced to five for most homes after a series of public hearings.

During a court hearing last week, Sebern testified that she requested records about the 48-member committee’s formation because “I was struggling to understand organizationally how this committee was chosen … This committee was supposed to be a community task force, but the desire of the committee and the desire of residents in the community were not in sync so it didn’t make sense to me.”

“In order to properly understand something — what it is and its effect on us — we need facts,” said Sebern, who was represented by Boulder attorneys Robert Gunning and Eric Maxfield. “This massive amendment to the zoning code will change the nature of Denver’s single-family neighborhoods.”

Vallejos denied the disclosure of four pages of emails between the mayor’s legislative director and council members. The messages are protected, he ruled, because “they discuss steps taken, people with whom they have had conversations, and other possible stakeholders to include apparently” in the advisory committee.

The judge also questioned the process used by the mayor’s deputy communications director, Mike Strott, to determine that the records requested by Sebern were privileged, noting that Strott didn’t confer with anyone involved in the formation of the advisory committee.

“Without such conferral to provide context and to understand what the agency is doing, it has to be difficult to make the decision whether the documents are relevant, whether they are deliberative, or whether they reflect candid ‘give and take’ that might harm the public interest if disclosed,” Vallejos wrote.

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