A Monument lawyer cannot inspect two records of the Colorado Department of Public Health and the Environment, a Denver District Court judge has ruled.
That refusal by Judge Shelley J. Gilman "actually created a dangerous precedent, and we do plan to appeal," attorney Leslie Weise said Wednesday.
The records contain 11 emails exchanged in 2013 by department staff discussing technical evaluations of whether the city has met the federal sulfur dioxide standard and the effect of SO2 emissions by the coal-fired Martin Drake Power Plant.
Gilman said the records must remain confidential to protect the government's deliberative process privilege and ensure "honest and frank discussion within the government."
The emails "reflect some of the predecisional deliberations on the Department's ultimate recommendation," the judge wrote.
The 2013 emails, though, were exchanged two years before the department staff knew that it would have to reclassify air quality standards attainment at Drake. That requirement wasn't imposed until March 2015, in the settlement of a lawsuit filed by the Sierra Club and National Resources Defense Council against the U.S. Environmental Protection Agency.
"It was not pre-decisional of anything. It was for a decision they didn't know about at the time. It's very disappointing," Weise said. "She writes the obvious inconsistency that it was for a decision that wasn't to be made for two years. She left out the part that they didn't know they would have to even make it, and thus bought right into CDPHE's position."
The federal consent decree issued in March ordered the state to review sulfur dioxide levels in the Pikes Peak region. Two professional firms' modeled analyses showed violations of SO2 standards. Colorado Springs Utilities' monitor showed the levels well within compliance.
The state Air Quality Control Commission in August declared Drake emissions to be "unclassifiable."
Gilman ruled that "without the protection of the deliberative process privilege, such staff may censor or suppress some spontaneous opinions, thoughts and questions, thereby deterring later full, frank and honest discussion with Department managers."
"She's putting an exceedingly high bar: Anything the government says is off-limits to the public. That is why the public records act was established," Weise said. "Only in limited cases can this information be withheld."
In weighing public access to records concerning the air quality designation vs. the public interest in "honest and frank discussion" by department officials, Weise's interest does not trump the department's interest in the records' confidentiality, the judge found.
She ruled on the case Dec. 22, but Weise and her 9-year-old son were out of town for Christmas. Weise received the result Tuesday by mail.
"This is a dangerous ruling without basis or logic," the lawyer said. "This means any conversation about anything can be kept from the public, counter to the CORA law purpose. It's very frustrating."
Weise said she sought the records because her son's charter school in Colorado Springs is in the Drake emissions plume, and she wants to ensure that the air is safe for children.
She said records related to public health and safety cannot be withheld. That view is echoed by First Amendment attorney Steven D. Zansberg, president of the Colorado Freedom of Information Coalition.
Weise said she hopes for a better result from District Court in El Paso County, where she filed a petition asking for release of air quality records held by Utilities.
The records from AECOM, hired by Utilities in December 2013, contain "trade secrets, privileged information, and confidential commercial, financial, geological or geophysical data," says Rick Griffith, of the City Attorney's Office.