DENVER — A Denver District Court Judge has ordered the Colorado Department of Healthcare Policy and Financing (HCPF) to supply Complete Colorado with more information as to why it withheld nearly 300 emails and other documents as part of an open records request.
Judge Jill Dorancy on Tuesday, also ordered that HCPF turn over all the documents in question to her so that she can compare the records to the newly ordered Vaughn Index and determine if any such documents were withheld properly.
A Vaughn Index is a log that outlines such things as the type of document, the reason for it being withheld, and most importantly an explanation as to why HCPF thinks it meets the definition of “deliberative process,” which is what the department claimed in withholding the requested documents.
Deliberative process is an argument allowed under the Colorado Open Records Act (CORA) that alleges a document is “so candid or personal that public disclosure is likely to stifle honest and frank discussion,” and withholding the document outweighs the public’s right to view it.
The complaint filed by Complete Colorado reporter Sherrie Peif says that HCPF did not adequately explain why each document was withheld under the privilege and why disclosure of the records would harm the public interest.
The order came during a show cause hearing Tuesday afternoon where Andrew Nickel, attorney for Peif, argued several points that he said should lead to the release of the documents, including that staffers inside HCPF are not policymakers, and therefore can’t claim deliberative process privilege.
Jennifer Weaver, the attorney for HCPF, said she believes they met the burden and should not have to supply any additional information.
Dorancy agreed with Complete Colorado that the Vaughn Index was vague and that the court also could not discern whether a document met the definition of the deliberative process simply by reading the index.
She gave HCPF seven days to amend its Vaughn Index and turn over the withheld records to her, adding that it could be a few weeks before she issues her ruling. The judge also noted that the order is not a final ruling, and attorneys for Complete Colorado will be able to ask the court to review specific documents once they receive the updated index.
The complaint
Named as the defendant in the lawsuit is Kathy Snow, the custodian of records for HCPF.
Complete Colorado retained Jackson Kelly, a well-known Denver law firm that specializes in government relations and open records laws.
“HCPF’s withholding of this large number of documents flies the face of the intent of the Colorado Open Records Act (CORA) and the public’s need for transparency,” said lead attorney John Zakhem in an earlier story. “It’s our client’s intention to pursue all legal remedies to ensure that full disclosure is made if the agency continues to refuse to be transparent.”
Among the records HCPF did release were emails that showed coordination between the department and progressive activists, who in turn had connections to legislators who carried bills in the 2023 legislative session session that change the way health care works in Colorado.
The records request is part of an ongoing Complete Colorado investigation concerning three legislative bills that appeared to flow out of previous claims by both Gov. Polis and HCPF that hospitals are making record profits, retaining record reserves, and spending less money to benefit the communities in which they operate.
In the petition, attorneys argue that on March 10, 2023, Snow sent Complete Colorado an email stating that there were “almost two thousand records that fit within the search parameters in email alone.”
On March 21, Snow sent Complete Colorado another email lowering her estimate without explanation and stating that there were now “1,550 emails that are “potentially responsive to your request.”
On April 13, Snow produced only 318 documents along with an affidavit and what is known as a Vaughn Index, purportedly listing each document that was being withheld “as attorney-client privilege or deliberative process privilege.”
Additionally, among other things, the petition says the Vaughn Index that was incorporated in Snow’s affidavit identified only 283 records that were withheld.
“Together with the 318 documents that were produced, Respondents accounted for only 601 of the initially estimated 1,500 – 2,000 documents,” the petition reads in part.
HCPF pushed out a report in January in support of their accusations, which hospital organizations began pushing back against, saying the information was outdated and inaccurate.
Just days after the HCPF reports were released, emails show HCPF sending links of the reports to former Rep. Daneya Esgar calling them “three legislatively required hospital transparency reports that were delivered to the General Assembly on Jan. 17.” The reports were intended to be the basis for three bills that were introduced in the Colorado legislature in late February and March.
Hospitals said these bills would severely cripple their ability to do business, and in March, Complete Colorado filed open records requests on HCPF asking for emails or other correspondence to or from several of its employees in relation to the three hospital-related bills.
The records request
In all, HCPF claimed the majority of the emails were “work product.”
Work product is defined in Colorado law as advisory or deliberative materials assembled for the benefit of elected officials to help them reach a decision.
According to the Colorado Freedom of Information Coalition website, work product includes “notes and memos on background information as well as preliminary drafts of documents that express a decision by an elected official. Elected officials may release, or authorize the release of, any work product prepared for them.”
Snow said “Disclosure of any pre-decisional draft documents at this time would endanger the frank and honest discussion and exchange of ideas within the government.”
In an affidavit for index, Snow wrote that the more than 1,000 emails withheld were done so for both attorney-client privilege and deliberative process privilege.
“Specifically, the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government,” Snow wrote. “Privilege has not been waived, disclosure would cause substantial injury to the public interest, and each document or portion of a document contains material such as comments, options, or debate by staff that ultimately informed the decision at hand.”
The bills in question
The first of the bills in question is House Bill 1215 which would put limits on what hospitals could charge for facility fees.
Another bill, House Bill 1243 concerns changes to what is known as the hospital community benefit by imposing requirements that increase the amount of net revenue spent by hospitals on community benefits.
The final bill, House Bill 1226, could push Colorado health care one step closer to a government-managed system. The bill concerns hospital transparency and reporting requirements. It opens up the finances of hospitals to state officials.
All three bills were passed by the Democrat majority and signed into law by Gov. Polis.
Complete Colorado previously reported on the connection between HCPF, progressive activists and legislators that were exposed in the emails as well as more details on the lawsuit and the bills.
In a CBS report from May, Kim Bimestefer, executive director of HCPF, told the CBS reporter that state agencies “usually” don’t take positions on bills yet HCPF, ironically, chose to do so on the three bills that prompted Complete Colorado’s CORA request.
“As a state, we need to hold each other accountable for good policies that protect people,” Bimestefer said in the interview.
Complete Colorado editor Mike Krause agreed, adding it’s journalism’s job to hold government officials accountable for the policies they make, and transparency in making those laws is a critical function of that.
“We think Coloradans deserve transparency as to how bills like these come together, and who is behind them, especially when being pushed by a taxpayer-funded state agency,” Krause said. “And we’re willing to go to court to find out.”
