Hunter v. City and County of Denver et al

Filing 174

ORDER. The Documents Submitted Yesterday for In Camera Review are ORDERED to be Disclosed by Judge John L. Kane on 07/15/14. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 12-cv-2682-JLK
JAMAL HUNTER,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, a municipality,
Deputy GAYNEL RUMER, in his individual and official capacities, and
Deputy EDWARD KELLER, in his individual and official capacities,
Defendants.

ORDER
Kane, J.
Yesterday a discovery dispute arose over documents being withheld by the City on
grounds of privilege. Counsel appeared and I agreed to review the documents in camera. While
not asserting these emails were subject to the so-called deliberative process privilege (counsel
advised there was no investigation going on at the time the emails were communicated), counsel
states the documents discuss findings and facts that might later become part of an investigation.
I have reviewed each of the emails and find they are discoverable. I ORDER them to be turned
over to plaintiff's counsel without delay.
I hasten to advise that the deliberative process privilege in this court is governed by
federal law rather than state law. It is confined to communications between and among agency
personnel containing their opinions, recommendations, and deliberations, where disclosure to the
public would discourage candid discussion within an agency that would undermine its ability to
perform its functions. The burden is on the party claiming the privilege and it is important to

recognize that an essential element of its invocation is to show not only a deliberative process,
but also that public disclosure would be detrimental to the agency's ability to perform its
functions. The purpose is to prevent injury to the quality of agency decisions. To fall within the
privilege, documents must be pre-decisional in nature and must also form a part of the agency's
deliberative process. Documents, however, must be produced where the opposing party's or the
court's need for the documents outweighs the party's interest in keeping the documents
confidential. This latter requirement is on the party asserting greater need.
The deliberative process privilege is a qualified privilege and a litigant can obtain
otherwise privileged documents if his need for the materials and/or the need for accurate
fact-finding override the agency's interest in nondisclosure. Care must be taken not to confuse
the ordinary business of an agency in making investigations of matters pursuant to its mission,
which are not covered by the privilege, and matters pertaining to the policies and operations of
the agency itself regarding its ability to perform its functions. In other words, the product of an
agency is not covered by the privilege, but the process and policies of the agency might be. See,
e.g., Olmsted, v. McNutt, 183 F.R.D. 386 (D.Colo. 1999). A blanket claim of the deliberative
process privilege regarding ordinary law enforcement files does not obtain merely because there
is an "ongoing investigation." In any event, a claim must be particularized.
Dated July 15, 2014
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE