Over my three decades as a journalist, I’ve come to know the Colorado Open Records Act (CORA) inside and out and have developed a keen instinct for when governments are trying to avoid transparency by hiding behind exceptions to Colorado’s sunshine laws. Indeed, keeping the government transparent is a big reason why I became a journalist. And this week has been particularly gratifying.
On March 5 a Denver District Court judge ruled that the Colorado Department of Health Care Policy and Financing (HCPF) improperly withheld documents from me as part of an open records request by wrongfully claiming what’s known as “deliberative-process privilege,” which is often just an excuse, concocted by the legislature, to withhold information. Now HCPF must turn over the documents they desperately tried to keep secret, as well as pay our attorney’s fees. It’s a big deal. Here’s the story.
The CORA request
It started on March 7, 2023, with a CORA request to HCPF. For weeks prior, I was getting tips from industry insiders about closed-door meetings between Democrat lawmakers, HCPF officials, members of Gov. Polis’ staff, and progressive political activists to develop more restrictive laws on hospitals as a way to “phase-in” the government oversight that goes along with a single-payer healthcare system.
Majority Democrats in the legislature were already dropping bills during the 2023 legislative session that backed up the rumors that were circulating.
I asked HCPF for a slew of records that included all hard-copy memoranda, letters, or other correspondence, including Slack, Teams or Zoom chats, text messages, WhatsApp, Signal messages, and/or emails sent or received at any time from January 1, 2023, through March 1, 2023, inclusive, by one or more of 12 different employees, and using several different terms related to health care.
HCPF records custodian Kathy Snow charged me (actually, my employer, Complete Colorado) $2,500 for what she said was about 2,000 records. We scaled back the request to include only emails to or from Kim Bimestefer, the executive director of HCPF, and it reduced the number of emails to about 1,500, but Snow still wanted $2,500. So we paid for it.
What I got back was 324 emails that showed a lot of “less-than-ethical” collusion on the part of HCPF staffers, legislators, and progressive activists, but not exactly what I was looking for. Snow refused to release the other 1,200 emails, mostly due to “deliberative-process privilege,” which allows government entities to claim requested records are “so candid or personal that public disclosure is likely to stifle honest and frank discussion” among officials and thus are exempt from disclosure.
“Deliberative-process privilege” is a thorn in any reporter’s side. It is a subjective use (or should I say abuse) of open records laws by government agencies to withhold documents because they know the only way the requester can ultimately get at those documents is to sue — a risk most media outlets won’t take on because of the cost and the likelihood of losing. We decided to call their bluff and go to court.
Send in the lawyers
Last summer, Complete Colorado sent in the lawyers, with myself as petitioner, asking the Denver District Court to intervene and take the decision out of the hands of people who simply were protecting their own butts.
We filed the complaint on June 26, 2023, had our only hearing on Sept. 5, 2023, went through several mini-rulings, and finally on Jan. 12, 2024, we asked for what’s known as an in-camera review, which just means the judge looks at the declined records to determine if they were withheld appropriately.
HCPF fought against every request, especially the in-camera review, but the rulings along the way always landed in our favor, and while it was a long year waiting for the decision, it was a year well worth it.
Although Denver District Court Judge Jill Dorancy didn’t award me all the emails I asked for, she did order about 40 percent of them to be released by March 11, saying those documents “do not include any pre-decisional or deliberative discussions.”
“The deliberative-process privilege protects factual material that is so inextricably intertwined with the deliberative sections of the documents that its disclosure would inevitably reveal the government’s deliberations,” Dorancy wrote in her decision. “These documents are not so intertwined. Further, the Court does not find that disclosure of these documents would result the substantial injury to the public interest.”
Government agencies need to take note that the work they do is under scrutiny and journalists are tired of being told no under a vague, and often subjective law.
It’s days like this that remind me why I love my job. I will continue to challenge the deliberative process excuse, and I will continue to put pressure on the government to be transparent.
And, I’ll let you know soon what was in those emails that HCPF tried so hard to keep from public scrutiny.
Sherrie Peif is an investigative reporter for Complete Colorado.
