Moffat Education v. Moffat School

• Court: Colorado Court of Appeals
• Decided: May 22, 2025
• Docket: 24CA1225
• Status: Unpublished

Opinion

24CA1225 Moffat Education v Moffat School 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1225 Moffat County District Court No. 23CV30047 Honorable Brittany Schneider, Judge

Moffat County Education Association,

Plaintiff-Appellant,

v.

Moffat County School District RE-1 and Moffat County School District RE-1 Custodian of Records,

Defendants-Appellees.

ORDER AFFIRMED

Division IV Opinion by JUDGE GOMEZ Freyre and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 22, 2025

Euell Thomas, Rory M. Herington, Denver, Colorado, for Plaintiff-Appellant

Hoskin Farina & Kampf P.C., David A. Price, Andrew H. Teske, Drew Kraniak, Grand Junction, Colorado, for Defendants-Appellees ¶1 Plaintiff, Moffat County Education Association (the

Association), appeals the trial court’s order denying its request for

records from defendants Moffat County School District RE-1 (the

District) and Moffat County School District RE-1 Custodian of

Records (the Records Custodian), under the Colorado Open Records

Act (CORA), § 24-72-203, C.R.S. 2024. The District and the

Records Custodian disclosed parts of the subject report, and the

trial court ruled that the other parts of the report were not subject

to disclosure under CORA. Consistent with the trial court’s ruling,

we conclude that (1) at least some of the undisclosed portions of the

report are protected from disclosure by the attorney-client privilege

and (2) the remaining portions are protected from disclosure by the

deliberative process privilege.

I. Background

¶2 The Moffat County Board of Education (the Board) requested

an investigation after an incident in which an elementary school in

the District replaced several windows and a District administrator

took some of the old windows home. The Board directed its

attorney, David Price, to determine whether there had been any

improper use or misappropriation of District property. At the same

1 time, the Board also directed Price to assess the organizational

health of the District’s central office administration and staff. Price

and his firm engaged Jane Quimby and Quimby & Associates, LLC

to assist in the investigation.

¶3 As a product of that investigation, Quimby and Price developed

a report — the Quimby Report. The report’s executive summary

indicates that the investigation consisted of a “comprehensive

review of relevant documentation, including e-mail communications

and policy guidelines,” and “[m]ore than thirty individual interviews

. . . [with] the Superintendent, District administrators, staff,

building leaders, teachers, Board members and former employees of

the District.”

¶4 After the investigation concluded, the Association filed a

request under CORA seeking disclosure of several records relating

to the administration of the District, including the Quimby Report.

The District and the Records Custodian provided all the requested

information except the Quimby Report, which they withheld on the

basis of the attorney-client privilege. Eventually, they provided the

executive summary and factual findings sections of the report, as

well as the total number of pages and a list of the report’s headings.

2 But they continued to deny access to the remainder of the report,

asserting that it was subject to the attorney-client privilege.

¶5 The Association brought the underlying complaint and

application for a show cause order under CORA.

¶6 After a hearing and an in camera review of the Quimby Report,

the trial court denied the Association’s requested relief on two

bases — the attorney-client privilege and the deliberative process

privilege. On appeal, the Association contends that the court erred

in its application of both privileges. We set out the relevant legal

standards and then assess each privilege in turn.

II. CORA Standards and Standard of Review

¶7 CORA provides that “[a]ll public records shall be open for

inspection by any person at reasonable times,” except as otherwise

provided. § 24-72-203(1)(a). “Public records” include “all writings

made, maintained, or kept by the state, any agency, institution, . . .

or political subdivision of the state . . . for use in the exercise of

functions required or authorized by law or administrative rule or

involving the receipt or expenditure of public funds.” § 24-72-

202(6)(a)(I), C.R.S. 2024.

3 ¶8 Privileged information, including information protected by the

attorney-client privilege or the deliberative process privilege, is not

subject to public inspection under CORA. § 24-72-204(3)(a)(IV),

(XIII), C.R.S. 2024; DiPietro v. Coldiron, 2022 COA 121, ¶ 19.

¶9 A trial court’s ruling on whether the attorney-client or

deliberative process privileges preclude public disclosure under

CORA presents a mixed question of fact and law. Bjornsen v. Bd. of

Cnty. Comm’rs, 2019 COA 59, ¶ 39. We review the court’s factual

findings for clear error, meaning we will uphold such findings as

long as there is record evidence to support them. Id.; see also

Galiant Homes, LLC v. Herlik, 2025 COA 3, ¶ 22. But we review the

court’s ultimate conclusions on application of the two privileges for

an abuse of discretion. See Black v. Sw. Water Conservation Dist.,

74 P.3d 462, 468 (Colo. App. 2003) (reviewing under an abuse of

discretion standard a trial court’s conclusions regarding application

of the attorney-client privilege in a CORA case); City of Colorado

Springs v. White, 967 P.2d 1042, 1057 (Colo. 1998) (reviewing under

an abuse of discretion standard a trial court’s conclusions

regarding application of the deliberative process privilege in a CORA

case); see also Land Owners United, LLC v. Waters, 293 P.3d 86, 95

4 (Colo. App. 2011) (“When reviewing matters of discovery and

privilege, we apply an abuse of discretion standard.”).

¶ 10 We decline the Association’s invitation to apply a de novo

standard to the ultimate determination of whether the attorney-

client and deliberative process privileges apply. The Association

relies on cases concerning interpretation of CORA’s statutory

language. See, e.g., Harris v. Denver Post Corp., 123 P.3d 1166,

1170-75 (Colo. 2005) (interpreting the statutory term “criminal

justice records”); Simpson v. Harmer, 2024 COA 30, ¶¶ 14-49

(interpreting the statutory terms “public records,” “work product,”

and “prepared for elected officials”). But, as the cases cited above

demonstrate, we apply an abuse of discretion standard to questions

concerning application of the attorney-client privilege and

deliberative process privilege exceptions to disclosure under CORA.1

¶ 11 A court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair or is based on an erroneous

application of the law. Land Owners United, 293 P.3d at 95.

1 Nonetheless, even if we applied the de novo standard, it wouldn’t

change the result because we agree with the trial court’s conclusions in applying the two privileges.

5 ¶ 12 Because CORA’s public policy favors disclosure, we construe

exceptions and exclusions to CORA narrowly. Simpson, ¶ 17.

III. Attorney-Client Privilege

¶ 13 We first address the trial court’s application of the attorney-

client privilege. It appears the court ruled that this privilege applies

to all the undisclosed portions of the Quimby Report. We conclude

that, at a minimum, the court didn’t clearly err or abuse its

discretion by applying this privilege to the undisclosed portions of

the report that set forth legal advice. See Million v. Grasse, 2024

COA 22, ¶ 29 (“[W]e may affirm a trial court’s judgment on any

basis supported by the record.”).

A. Relevant Legal Standards

¶ 14 The privilege for attorney-client communications has been

incorporated into CORA. Black, 74 P.3d at 467; see also § 24-72-

204(3)(a)(IV).

¶ 15 “The attorney-client privilege extends only to matters

(1) communicated by or to the client in the course of gaining

counsel, advice, or direction about the client’s rights or obligations;

and (2) under circumstances giving rise to a reasonable expectation

that the statements will be treated as confidential.” Bjornsen, ¶ 54.

6 ¶ 16 The burden of establishing the applicability of the attorney-

client privilege rests with the party claiming the privilege, and the

burden of establishing a waiver rests with the party seeking to

overcome the claim of privilege. Black, 74 P.3d at 467.

B. Application

¶ 17 The trial court concluded that the undisclosed portions of the

Quimby Report are protected by the attorney-client privilege. The

Association challenges that conclusion. Having reviewed the

Quimby Report in camera, as well as the record, we discern no clear

error or abuse of discretion in the trial court’s decision as it applies

to the undisclosed portions of the report that set forth legal advice.

¶ 18 In determining that the attorney-client privilege applies, the

court observed that “the [a]ttorney is Mr. Price, and the [c]lient is

the [Board].” The court found that the undisclosed parts of the

report “contain[] a combination of facts, opinions, and

recommendations based on the interview process completed by

Ms. Quimby at the direction of Mr. Price.” The court seemingly

determined that all of those parts fall within the attorney-client

privilege, explaining, as to the more factual parts, that “the

information provided through the investigative process by

7 employees of the [D]istrict [was] designed to assist Mr. Price in

providing advice to the Board through the Quimby Report.”

¶ 19 The Association makes several arguments challenging this

ruling. First, it argues that the Quimby Report isn’t protected by

the attorney-client privilege because it doesn’t contain any

communications between an attorney and a client. Relatedly, it

argues that there are no “direct communications” in the report

between Price and the Board or any Board members.

¶ 20 But in concluding that the report contains communications

between Price, as an attorney, and the Board, as his client, the

court relied on the following factual findings:

• Price and Quimby were in regular communication

throughout the investigative process.

• The employees’ statements during the interviews were

made for the purpose of assisting Price in providing legal

advice to the Board.

• Price contributed to the Quimby Report, “specifically in

the recommendations made and the analysis of the

factual assertions provided.”

8 • The recommendations in the Quimby Report “come in the

form of legal advice.”

¶ 21 To the extent that the Association challenges these findings

and cites evidence that might have supported contrary findings, we

perceive no clear error. See Galiant Homes, ¶ 22. The engagement

letter between Price’s firm and Quimby & Associates provides that

Quimby will conduct the investigation but that “it is not Quimby’s

role to provide advice or counsel regarding any legal aspects of the

project.” Rather, the letter states that Price and his firm “may

provide legal advice to the District that incorporates, includes or

relies upon” the information collected in the course of the

investigation. And Price testified that he and Quimby worked on

the report together and that he provided “at least some, if not all, of

the . . . legal parts of the analysis.”

¶ 22 Nor do we perceive any abuse of discretion in the court’s

application of the attorney-client privilege to those portions of the

Quimby Report that offer legal advice based on the information

gleaned in the investigation. It is true that the privilege doesn’t

apply to communications where a lawyer is acting solely in an

investigative capacity, instead of as a legal counselor. Munoz v.

9 State Farm Mut. Auto. Ins. Co., 968 P.2d 126, 130 (Colo. App. 1998).

The privilege does, however, apply to “the giving of professional

advice to those who can act on it,” as well as “the giving of

information to the lawyer to enable him to give sound and informed

advice.” Nat’l Farmers Union Prop. & Cas. Co. v. Dist. Ct., 718 P.2d

1044, 1049 (Colo. 1986); accord Denver Post Corp. v. Univ. of Colo.,

739 P.2d 874, 880 (Colo. App. 1987). And, certainly, the trial court

acted within its discretion in concluding that the legal advice Price

included in the report is subject to the attorney-client privilege.

¶ 23 We reject the remainder of the Association’s arguments as

follows:

• Employee statements: We needn’t consider whether the

attorney-client privilege extends to the reporting of

employee statements from interviews with Quimby, see

Upjohn Co. v. United States, 449 U.S. 383, 394-95 (1981),

because we’re limiting our application of this privilege to

those portions of the Quimby Report that set forth legal

advice. As we discuss in the next section, the other

portions of the report — including those summarizing the

investigative findings from employee interviews —

10 properly fall within the scope of the deliberative process

privilege.

• Work product doctrine: It’s irrelevant that the Quimby

Report wasn’t prepared in anticipation of litigation. That

argument pertains to the work product doctrine, see Nat’l

Farmers, 718 P.2d at 1047-48 — a basis the District and

the Records Custodian didn’t rely on and the trial court

didn’t cite in support of nondisclosure.

• Waiver of the privilege: The District didn’t waive the

attorney-client privilege by asserting it as a basis to resist

disclosure of the Quimby Report or by providing general

testimony (through its attorney) about the report at the

hearing to resolve the issue of privilege. The authority

the Association cites relates to the assertion of a legal

claim or defense that depends on privileged materials,

thereby placing the privileged materials at issue, and in

no way suggests that merely asserting the privilege

places the potentially privileged materials at issue. See,

e.g., People v. Trujillo, 144 P.3d 539, 543 (Colo. 2006).

11 ¶ 24 Accordingly, we affirm the trial court’s application of the

attorney-client privilege as to the portions of the Quimby Report

that set forth legal advice.

IV. Deliberative Process Privilege

¶ 25 We now turn to the trial court’s application of the deliberative

process privilege. Although it appears the trial court ruled that this

privilege applies to the entire Quimby Report, we don’t consider the

privilege’s application to the undisclosed portions of the report that

set forth legal advice, which we’ve already determined are protected

from disclosure by the attorney-client privilege. As to the remaining

undisclosed portions of the report, we conclude that the court didn’t

clearly err or abuse its discretion by applying the deliberative

process privilege. See Million, ¶ 29.

¶ 26 The deliberative process privilege — which the supreme court

in White first determined applies to disclosure under CORA, see

White, 967 P.2d at 1054-56 — is now codified at section 24-72-

204(3)(a)(XIII). See Land Owners United, 293 P.3d at 95-96.

¶ 27 The deliberative process privilege is a qualified privilege aimed

at “protect[ing] the frank exchange of ideas and opinions critical to

12 the government’s decisionmaking process where disclosure would

discourage such discussion in the future.” White, 967 P.2d at

1051. Thus, a key question in determining whether the privilege

applies is whether disclosure of the subject material “would expose

an agency’s decisionmaking process in such a way as to discourage

discussion within the agency and thereby undermine the agency’s

ability to perform its functions.” Id.

¶ 28 Materials must satisfy three criteria in order to fall within the

deliberative process privilege. See id. at 1051-52.

¶ 29 First, the materials must be predecisional, meaning they were

generated before the adoption of an agency policy or decision. Id. at

1051. Thus, the privilege doesn’t protect communications made

after a decision and designed to explain that decision. Id. In this

respect, courts distinguish “[d]ocuments representing the ideas and

theories that go into the making of policy” — which are privileged —

from “binding agency opinions and interpretations” that the agency

“retain[s] and refer[s] to as precedent” and that constitute the

agency’s policies themselves — which are not privileged. Id. at 1052

(quoting Sterling Drug, Inc. v. Fed. Trade Comm’n, 450 F.2d 698,

708 (D.C. Cir. 1971)). Moreover, “[a] document from a subordinate

13 to a superior official is more likely to be predecisional, ‘while a

document moving in the opposite direction is more likely to contain

instructions to staff explaining the reasons for a decision already

made.’” Id. (quoting Coastal States Gas Corp. v. Dep’t of Energy,

617 F.2d 854, 868 (D.C. Cir. 1980)). Materials that are

predecisional generally retain their protection even after a decision

is made unless the decision-maker incorporates them by reference,

or expressly adopts them, in the final decision. Id.

¶ 30 Second, the materials must be deliberative, meaning they are

“reflective of the give-and-take of the consultative process.” Id. at

1051. “In determining whether material is deliberative, courts have

distinguished between ‘advisory materials which truly reflect[] the

deliberative or policymaking processes of an agency’ and ‘purely

factual, investigative material’ which is not protected.” Id. at 1052

(alteration in original) (quoting Env’t Prot. Agency v. Mink, 410 U.S.

73, 89 (1973)). Although the privilege generally applies more to

opinions and advisory materials than to purely factual investigative

materials, it also protects factual materials that are “so inextricably

intertwined with the deliberative sections of the documents that

[their] disclosure would inevitably reveal the government’s

14 deliberations.” Id. (quoting In re Sealed Case, 121 F.3d 729, 737

(D.C. Cir. 1997)).

¶ 31 And third, a court must find that the materials are “so candid

or personal that public disclosure is likely to stifle honest and frank

discussion within the government.” § 24-72-204(3)(a)(XIII); accord

White, 967 P.2d at 1052. In doing so, the court must “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.”

§ 24-72-204(3)(a)(XIII). This includes consideration of such factors

as “the relevance of the evidence, whether there is reason to believe

the [materials] may shed light on government misconduct, whether

the information sought is available from other sources and can be

obtained without compromising the government’s deliberative

processes, and the importance of the material to the discoverant’s

case.” White, 967 P.2d at 1054.

¶ 32 It is the government’s initial burden to provide sufficient

information to show that these three criteria are satisfied. Id. at

1053. If it does so, “[t]he trial court should honor the claim of

15 privilege unless the party seeking discovery makes a preliminary

showing that the material may not be privileged or that there is

some necessity for its production,” in which case the court should

review the materials in camera and then determine the applicability

of the privilege. Id. at 1054.

¶ 33 Applying these standards, the supreme court in White held

that a trial court hadn’t abused its discretion by determining that a

report generated by an outside consultant as part of an internal

evaluation was protected by the deliberative process privilege. Id. at

1045, 1056-58. The supreme court agreed with the trial court that

the report was “predecisional in that it was designed to guide the

[agency and its administrator] in developing strategies to improve

the [agency].” Id. at 1057. The court also agreed that the report

was deliberative, as it was “largely composed of employees’ opinions

as to the strengths and weaknesses of the [agency] and its

administrator,” which had been obtained “to assist the

decisionmaking process rather than to serve as an expression of a

final agency decision.” Id. Finally, the supreme court noted that

the report contained “employees’ candid and personal views about

the [agency] and its administrator” and, “[a]s the trial court [had]

16 found, the knowledge that these views may be disclosed publicly

[wa]s likely to discourage such frankness in the future.” Id.

¶ 34 The trial court concluded that the undisclosed portions of the

Quimby Report met all three requirements for application of the

deliberative process privilege. The Association challenges each of

these determinations. But, having reviewed the Quimby Report in

camera, as well as the record, we discern no clear error or abuse of

discretion in the trial court’s thorough, well-reasoned decision as it

relates to the remaining undisclosed portions of the report (other

than those that set forth legal advice).

¶ 35 First, the trial court found, based on the hearing testimony,

that the report is predecisional, as it “was designed to provide

investigation and recommendations to address the cultural and

organizational concerns within the [District],” “was not created after

a final decision was made about any issue contained in the report,”

and “[wa]s not designed to explain why the [District] made any

specific decision.” Rather, the court explained, “[t]he testimony is

quite clear that the Quimby Report was requested to provide

information to assist in the decision-making process.” The court

17 also concluded that the material didn’t lose its protected status by

being incorporated by reference or expressly adopted in any final

decision, reasoning that the court “ha[d] seen no decision made by

the [District] that incorporates by reference or expressly adopts the

contents of the [r]eport.”

¶ 36 The record supports the court’s findings and indicates that the

remaining undisclosed portions of the Quimby Report are

predecisional in nature. Indeed, as in White, those parts of the

report “contain[] observations on the current atmosphere and

suggestions on how to improve it” and were “designed to guide the

[District] in developing strategies [for] improve[ment].” 967 P.2d at

1057. Additionally, the record supports the court’s conclusion that

the report didn’t lose its protected status because there was no

indication that the District had expressly incorporated by reference

or adopted any of the report’s contents in its final decision-making.

See id. at 1052.

¶ 37 Second, the trial court found, again based on the hearing

testimony, that the Quimby Report is deliberative. The court

explained that “the testimony makes clear that the report went

through more than one draft, and that at least one member of the

18 Board, [the Board President], was involved in lengthy discussions

surrounding the contents of the report with Mr. Price.” The court

also noted that, as in White, the report’s authors (Price and

Quimby) “did not possess the authority to promulgate final

decisions for the agency” but only “to provide suggestions to the

decision-makers,” which they did in the report.

¶ 38 The court’s findings on this issue, as it pertains to the

remaining undisclosed portions of the report, likewise are

supported by the record. Much like the report at issue in White,

these parts of the report are “largely composed of employees’

opinions as to the strengths and weaknesses of the [District] and its

[leadership],” which were gathered “to assist the decisionmaking

process.” 967 P.2d at 1057. To the extent that the Association

suggests that the deliberative process privilege can’t protect the

statements employees made during interviews because they are

factual in nature, we disagree. As we’ve indicated, the deliberative

process privilege extends to “factual material that is ‘so inextricably

intertwined with the deliberative sections of the documents that its

disclosure would inevitably reveal the government’s deliberations.’”

Id. at 1052 (quoting In re Sealed Case, 121 F.3d at 737).

19 ¶ 39 And third, the trial court decided, as a matter of its discretion,

that “the [Board’s] interest in keeping the material confidential, to

avoid the chilling effect that is not merely speculative, outweighs

the [Association’s] interest in disclosure of the materials.” Weighing

the factors outlined by the supreme court in White, the trial court

found:

Like in White, the report at issue here contains information collected not from leadership, but from employees of the organization. While those employees are not specifically named in the [r]eport, the statements contained in the [r]eport and made by employees are quite candid and personal, and given the nature and size of the community, the concern that employees could be identified by their comments is a concern. Of even greater concern is the fact that these people contributed their frank and honest opinions for the report with the promise of anonymity. Based on the promises made and the contents of the report, the disclosure of the [r]eport would have a chilling effect on future honest and frank communications.

....

As noted by [the Board President] in her testimony, the requirement of disclosure would chill her willingness, as President of the Board, to make similar requests and initiate similar investigations in the future. This is separate from the more speculative chilling effect on those who might have freely and openly

20 participated in such an investigation in the future. The public disclosure of the report could also place current and former employees in a position where their comments are publicly identified and create backlash for their participation in the [r]eport and for their candid and frank remarks made under the belief that they would remain confidential. These concerns outweigh the generalized concern that the disclosure of the report might uncover government misconduct.

¶ 40 Through this extensive reasoning, “the court properly balanced

the public’s interest against the government’s interest.” Land

Owners United, 293 P.3d at 96. Thus, we discern no abuse of

discretion in the court’s determination that the balancing of

interests favored nondisclosure.2

¶ 41 Accordingly, we affirm the trial court’s application of the

deliberative process privilege as to the remaining undisclosed

2 The Association also argues that any potential concerns against

disclosure have lessened in the time since the Quimby Report was issued. Because the Association didn’t make this argument in the trial court, and because our review is limited to determining whether the trial court’s decision was clearly erroneous or an abuse of discretion based on the evidence before the court at the time, we decline to consider this argument now. See Core-Mark Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶¶ 20-27 (declining to consider arguments that weren’t made in the trial court); In re Marriage of Capparelli, 2024 COA 103M, ¶ 37 (discerning whether a trial court acted within its discretion “[b]ased on the record that was before the court at the time of [its decision]”).

21 portions of the Quimby Report (other than those portions that set

forth legal advice).

V. Disposition

¶ 42 The order is affirmed.

JUDGE FREYRE and JUDGE MEIRINK concur.