2020 COA 93
Colo. Ct. App.2020Background
- In 2016 the Basalt Town Council held four executive sessions citing four statutory reasons: property interests, legal advice, negotiations, and personnel matters; public notices listed only those statutory categories with no particulars.
- Theodore Guy requested records and challenged the adequacy of the executive-session notices under the Colorado Open Meetings Law (COML) and sought related records under CORA.
- The district court reviewed recordings, found sessions were for proper purposes, and ruled the Town need not provide more detail for "legal advice" or "personnel matters" because of attorney-client privilege and the town manager’s privacy/contractual interests.
- On appeal the Court of Appeals reviewed the statutory notice requirement de novo and addressed whether the Town’s bare recitation of statutory categories satisfied COML’s mandate to identify the "particular matter" "in as much detail as possible without compromising the purpose."
- The Court of Appeals held the Town violated COML by failing to provide any subject-matter detail for legal advice and personnel matters (at least identifying that personnel discussion concerned the Town Manager), ordered disclosure of existing recordings/minutes for improperly noticed sessions, and remanded for award of appellate costs and fees; the appeal as to the district court’s unresolved attorney-fee amount was dismissed as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether announcing only statutory categories (e.g., "legal advice") satisfies COML’s requirement to identify the "particular matter" for executive session | Guy: COML requires identification of particular matters "in as much detail as possible"; bare statutory recitation is insufficient | Town: attorney-client privilege or sensitivity prevents providing any further detail; routine practice is to recite only statutory categories | Court: Bare recitation insufficient for "legal advice"; subject matter may be disclosed without waiving privilege; Town violated COML |
| Whether announcing only statutory category "personnel matters" satisfied COML where sessions concerned the Town Manager | Guy: Must identify the employee involved (at least the Town Manager) consistent with public interest and narrow privacy protections | Town: Disclosure would violate the manager’s privacy/contract and risk breach of contract/retaliation claim | Court: Town must at minimum identify that personnel matters concerned the Town Manager; contractual/privacy concerns do not excuse statutory notice requirement |
| Remedy and fees: entitlement and finality of fee award | Guy: Prevailing citizen entitled to costs and reasonable attorney fees under COML | Town: contested reasonableness/amount; district court postponed fee determination | Court: Guy entitled to appellate costs and fees; remand to district court to award appellate fees; appeal of unresolved district-court fee amount dismissed as premature |
Key Cases Cited
- Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982) (attorney-client privilege covers confidential communications, not underlying facts)
- Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000) (privilege does not protect otherwise unprivileged underlying facts)
- City of Colorado Springs v. White, 967 P.2d 1042 (Colo. 1998) (treatment of evidentiary privileges under CORA and need for particularized privilege assertions)
- Gumina v. City of Sterling, 119 P.3d 527 (Colo. App. 2004) (executive sessions improperly convened open minutes/recordings to public)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index requirement; particularized description of withheld documents)
- United States v. O’Malley, 786 F.2d 786 (7th Cir. 1986) (disclosing subject of attorney communications does not automatically waive privilege)