Here's the city's response to our question about why an affidavit wasn't provided under the third reason for withholding the employee survey, as mentioned below:
In reliance on the first two exemptions cited under the Colorado Open Records Act, one of which is a legal requirement to withhold the records from release to the public and the other which indicates these would not be public records in the first instance, the City does not intend at this time to also provide the supporting documentation relating to the potential third ground for denial. However, due to the applicability of that additional exception to the records you have requested, the City reserves the option to also rely on that provision and provide the sworn statement if necessary.
————-ORIGINAL POST 10:51 A.M. WEDNESDAY, JUNE 22, 2016———————
Today, we report a few findings
of a "Mayor's Survey" of city employees conducted late last year, but most of the results are being withheld.
We asked the city last Friday to explain its reasons for withholding the findings under an exemption in the Colorado Open Records Act
that allows an agency to not disclose proprietary information, the original reason the survey results were withheld.
The city's response, which appears below, didn't arrive until late Tuesday after the Independent
's press run. Then, the city invokes a few more reasons that didn't appear in the original denial sent to us on June 15.
Proprietary information means information that the company wishes to keep confidential. Although Section J of the City’s standard procurement contract governs ownership of materials produced by the contractor for the City, it does not regulate the potential release of that contractor’s materials to the public pursuant to a Colorado Open Records Act (“CORA”) request. Because the provision noted on the initial response to your CORA request is a mandatory nondisclosure provision relating to confidential, commercial data and the company has marked its material as confidential and continues to indicate to the City that it wishes for the material to remain confidential, the City will not release the materials you have requested. Additionally, the results are not public records pursuant to Colorado Revised Statute (“C.R.S.”) §24-72-202(6)(b)(II) and C.R.S. § 24-72-202(6.5)(a). Finally, the results of the employee survey are subject to C.R.S. § 24-72-204(3)(a)(XIII) because public disclosure is likely to stifle honest and frank discussion within the government and employee participation in the survey.
Although the city didn't give us the wording of the law citations noted above, we consulted the law and hope we've gotten it right when providing the following citations within the open records act.
The first statutory reference cited by the city is for this exemption in the open records act: "Work product
prepared for elected officials. However, elected officials may release, or authorize the release of, all or any part of work product prepared for them."
The second reference:
"Work product" means and includes all intra- or inter-agency advisory or deliberative materials assembled for the benefit of elected officials, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials in reaching a decision within the scope of their authority.
The third reference:
Records protected under the common law governmental or "deliberative process" privilege, if the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government, unless the privilege has been waived. The general assembly hereby finds and declares that in some circumstances,
public disclosure of such records may cause substantial injury to the public interest. If any public record is withheld pursuant to this subparagraph (XIII), the custodian shall provide the applicant with a sworn statement specifically describing each document withheld, explaining why each such document is privileged, and why disclosure would cause substantial injury to the public interest. If the applicant so requests, the custodian shall apply to the district court for an order permitting him or her to restrict disclosure.
The application shall be subject to the procedures and burden of proof provided for in subsection (6) of this section. All persons entitled to claim the privilege with respect to the records in issue shall be given notice of the proceedings and shall have the right to appear and be heard. In determining whether disclosure of the records would cause
substantial injury to the public interest, the court shall weigh, based on the circumstances presented in the particular case, the public interest in honest and frank discussion within government and the beneficial effects of public scrutiny upon the quality of governmental decision-making and public confidence therein.
Please note that when citing the last exemption, it's incumbent upon the city to provide the applicant — that would be the Indy
— with a "sworn statement" describing the documents withheld. We've bold-faced that portion of the law cited above.
The city has not provided such a sworn statement.