Polis administration accused of wrongfully withholding public records in lawsuit

By Matt Connelly
black and white hospital bed in the middle of interior building

In a recent development, Complete Colorado has filed a petition in Denver District Court against the Colorado Department of Health Care Policy and Financing (HCPF), seeking answers for the agency’s failure to comply with a public records request. Campfire previously covered the potential of upcoming litigation in this dispute. 

The petition alleges that HCPF wrongfully withheld documents and violated provisions of the Colorado Open Records Act (CORA), shedding light on potential transparency issues within the state government.

The petition was filed by Sherrie Peif, an investigative journalist with Complete Colorado, who sought specific documents related to various terms and employees at HCPF, many of which appear connected to pieces of health care related legislation last year. The extent to which the Polis administration can shield internal deliberations about legislation at state agencies will likely be central to this legal dispute. 

Despite HCPF’s initial estimation of nearly 2,000 records within the search parameters, they ultimately produced only 318 documents, citing attorney-client privilege and deliberative process privilege for withholding the rest.

Further investigation revealed that on June 9, 2023, the Colorado State Attorney’s General office provided a subsequent response to the request, producing a mere six additional documents. Out of the amended Vaughn Index provided, 272 documents were claimed to be protected by deliberative process privilege, which Complete Colorado argues is an overbroad application.

The Colorado Supreme Court has found “the purpose of [deliberative process privilege] is to protect the frank exchange of ideas and opinions critical to the government’s decision making process, where disclosure would discourage such discussion in the future.”

Well over a dozen emails in the Supplemental Vaughn Index published by Complete Colorado reference conversations from HCPF staff between January and March pertaining to hospital transparency legislation. The legislation in question was introduced later in March and was recently signed into law this June. While HCPF argued to Complete it has the authority to withhold conversations on “pending legislation,” the extent to which that protects HCPF’s ability to conceal communications about “recommendations” for upcoming legislation is unclear. A judge will now ultimately make that determination, and review if these communications were truly “predecisional” in nature.     

Among the records released by HCPF were emails indicating coordination between the department and progressive activists, who had connections to legislators introducing the bills. These bills, signed into law by Gov. Polis, address hospital fees, community benefit requirements, and hospital transparency and reporting.

The petition follows Complete Colorado’s payment of $2,500 to fulfill its initial CORA request to HCPF. The high cost of public records requests under CORA is already a concern for news organizations and the general public, making it unfortunate that legal recourse was necessary to pursue transparency at HCPF, according to Complete Colorado editor Mike Krause.

“Public records requests under CORA are already often unaffordable for news organizations and the general public, and it is unfortunate that Complete Colorado has been forced to turn to the courts in order to pursue transparency at HCPF,” Krause said.

Many CORA requests never get fulfilled because of these high costs, and even less are challenged in court.

As the case unfolds, it appears likely it will shed further light on the Polis administration’s broad and potentially unlawful application of CORA to shield state agencies’ political agendas from the general public.

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About the Author:

Matt Connelly is the founder of Campfire Colorado. Follow him on Twitter @MattConnelly.