Colorado’s second-highest court has settled on a narrower interpretation of the state’s open records law, deciding a former paralegal for the city of Loveland could not have access to emails in which she was the subject.

A three-judge panel of the Court of Appeals last month reversed a Larimer County judge who believed that even though the emails fell into the category of attorney-client privilege, the Colorado Open Records Act (CORA) carved out an exception for Michele DiPietro to gain access.

“We decline to interpret CORA in a way that would effectively destroy the attorney-client privilege for governmental entities,” wrote Judge David H. Yun in the panel’s Oct. 13 opinion.

The rare interlocutory, or mid-case, appeal in DiPietro’s civil lawsuit came amid the realization that no appellate court had interpreted the portion of CORA under dispute. The law shields government records from public view that pertain to attorney-client or “deliberative process” privilege, which implicate “honest and frank discussion within the government.”

Accordingly, CORA directs records custodians to deny access to privileged information. At the same time, there is an exception for someone who is a “person in interest” – meaning the subject of the records.

DiPietro worked as a paralegal for Loveland for 13 months between August 2020 and September 2021. The circumstances of her departure were disputed, with the city arguing she resigned and DiPietro insisting she was “abruptly terminated.”

After leaving city employment, DiPietro filed CORA requests seeking email conversations about a reasonable accommodation request she made pursuant to the Americans with Disabilities Act. DiPietro alleged the emails contained information about how City Attorney Moses Garcia was seeking to “get around” DiPietro’s accommodation request.

She asked District Court Judge Gregory M. Lammons to order the disclosure of some or all of the 22 emails the city labeled as attorney-client privileged or privileged under the “deliberative process.”

In April, Lammons issued an order recognizing the General Assembly’s desire to protect privileged communications, while also providing an exception for a person in interest.

“Despite the strong policy reasons that give rise to the privilege, the attorney-client privilege is not absolute, and when the social policies underlying the privilege conflict with other prevailing public policies, the attorney-client privilege must give way,” he wrote.

Lammons ordered the disclosure of the emails to DiPietro as the person in interest, but simultaneously signed off on an appeal to the Court of Appeals given the uniqueness of the legal issue.

Attorneys for the defendants, Garcia and Loveland City Clerk Delynn Coldiron, argued Lammons’ decision would erode the notion of attorney-client privilege because Loveland, as the client, had not agreed to relinquish the privilege of confidentiality.

“This is an unprecedented decision in Colorado and implicates the right of a client to shield from disclosure communications with their attorney,” lawyers for the defendants wrote to the Court of Appeals.

Interest groups for Colorado’s counties and municipalities also lined up against Lammons’ interpretation. Colorado Counties, Inc. filed a request that the legislature update CORA in 2023 to prevent disclosure of all governmental attorney-client communications, the Colorado Freedom of Information Coalition reported.

The Colorado Municipal League, which represents 270 of the state’s 272 cities and towns, also submitted a brief to the Court of Appeals, arguing the “subject” of the 22 disputed emails was not DiPietro, but the government itself. Consequently, the privilege of confidentiality should apply.

“The privilege serves the public interest in sound decision-making by ensuring that subordinates will offer decision makers with ‘uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism’,” wrote attorney Robert D. Sheesley.

The Court of Appeals panel did not dispute DiPietro was a “person in interest” and the subject of the emails. Instead, it believed Lammons had analyzed CORA backwards. Whereas Lammons had found the person-in-interest exception applied to privileged communications, the panel believed privileged communications were instead an exception to the disclosure requirement for persons in interest.

“To conclude that a person who is the subject of those important communications is entitled to inspect them would directly contradict the General Assembly’s express intent in creating this (privileged) exception to CORA disclosures,” Yun wrote.

He added that the panel’s interpretation does not impermissibly stifle the “accountability function” of the open records law.

The case is DiPietro v. Coldiron et al.

Editor’s note: This article has been updated to correct the number of municipalities in Colorado.