293 P.3d 86
Colo. Ct. App.2011Background
- In 2007-2009, Colorado investigated conservation easement valuations; press releases announced confidential investigations and one license suspension.
- Land Owners United filed six CORA requests seeking Board records related to Milenski and Stroh investigations and the broader Board inquiry.
- Board repeatedly provided some records and withheld others, invoking CORA exemptions: investigatory files, deliberative process, and confidential information, plus some emails and privilege claims.
- District court held an in-camera review, ordered disclosure with redactions, and held two documents privileged; CORA exemptions were not dispositive against disclosure.
- On appeal, Board challenged the district court’s reliance on CORA exemptions and redaction; Land Owners defended disclosure and targeted the balancing approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does CORA's investigatory files exemption apply? | Land Owners contends exemptions do not apply since investigations concluded. | Board asserts records are exempt as investigatory files for law enforcement. | Exemption does not shield records; disclosure required with some redactions. |
| Does the Board's authorizing statute control disclosure vs CORA exemptions? | CORA disclosures must prevail post-investigation per public-record policy. | Board's statute allows confidentiality during investigations and ongoing processes. | CORA exemptions govern; authorizing statute does not compel withholding under CORA here. |
| Does CORA's deliberative process exemption apply to the cited records? | Public scrutiny outweighed confidentiality; records should be disclosed. | Deliberative process privilege protects candid internal communications. | District court did not abuse; records not protected; balance favored disclosure. |
| Does CORA's confidential information exemption apply to financial data in the records? | Redaction allowable; some confidential information must be withheld. | Disclosure would impair future information collection; records confidential. | Affirmed redaction of confidential information; overall disclosure permitted. |
| Should attorney-client privilege govern any records? | Some records are privileged and should be withheld. | Attorney-client privilege applies to certain records. | Attorney-client privileged records were properly treated; going-issue limited. |
Key Cases Cited
- Wagner v. Hilkey, 914 P.2d 460 (Colo. App. 1996) (correct judgment affirmed despite different reasoning)
- LaFond v. Basham, 683 P.2d 367 (Colo. App. 1984) (appellate review generally respects trial court's decision)
- Denver Publ'g Co. v. Univ. of Colorado, 812 P.2d 682 (Colo. App. 1991) (CORAs openness policy; narrow exemptions)
- Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998) (narrowly construed CORA exemptions; privacy and disclosure balance)
- Denver Post Corp. v. Ritter, 255 P.3d 1083 (Colo. 2011) (expands on limits of CORA; policy considerations for disclosure)
- IBEW v. Denver., Maj. League Baseball Stadium Dist., 880 P.2d 160 (Colo. App. 1994) (confidential financial data must show specific harms to withhold)
- Reale v. Bd. Real Estate Appraisers, 880 P.2d 1205 (Colo. 1994) (illustrates expressio unius tricky application in exemptions)