Our View: The county’s secrets
Open government is good government. That’s a philosophy the Routt County commissioners, manager and attorney should take a little closer to heart.
On Dec. 2, the Army Corps of Engineers notified the county that it intended to deny the county’s request for a wetlands permit to build a new justice center at a site west of town because a “practicable alternative” exists downtown. In essence, the Corps’ letter was a courtesy. It gave the county a final opportunity to make arguments to change the Corps’ mind or to withdraw the permit to avoid having it formally denied.
In the month since, the county has sent at least two documents to the Corps of Engineers. But when asked to provide those documents to members of the media and the Friends of the Justice Center, the county refused. The county rejected in writing a Colorado Open Records Act request filed by Towny Anderson of the Friends of the Justice Center. When the Steamboat Pilot & Today issued a similar open records request Tuesday, the county verbally denied the request and said that written denial would be issued.
County Attorney John Merrill argued that the requested documents did not have to be disclosed because they fell under attorney-client privilege. He said the documents amounted to “work product.” Merrill said releasing the documents would be tantamount to negotiating with the Corps of Engineers in public and that the county was not going to do that.
The problem is that Merrill’s arguments are fundamentally wrong. As Chris Beall, an attorney with Faegre and Benson in Denver, noted, attorney-client privilege applies only to information communicated between an attorney and his or her client. Obviously, the Corps of Engineers is not Merrill’s client.
“If a communication between a lawyer and a lawyer’s client is disclosed to someone else, it is no longer privileged,” said Beall, who has represented the Pilot & Today and many other Colorado newspapers on open-records matters.
Merrill’s argument that the documents are work product also doesn’t wash. Work product is information compiled to assist elected officials in making a decision. It includes drafts and proposals. But after a document has been signed and sent to another public agency, it clearly is not work product.
The Army Corps of Engineers understood immediately that the documents it received from the county were matters of public record. That’s why the Corps released the documents within hours of receiving a Freedom of Information Act request Tuesday from the newspaper.
Here’s what Merrill and the county wanted to keep from public inspection:
n A five-page letter from Merrill to the Corps outlining why the downtown location for a justice center is not a practicable alternative.
n A two-page Freedom of Information Act request seeking all information and communication regarding the county’s wetlands permit application.
Forget the irony of the county trying to keep a Freedom of Information Act request secret, and forget that the information in Merrill’s five-page letter contains no new arguments. It’s just plain wrongheaded for anyone to keep communication between two public entities on a public issue from public view.
Let this be a lesson to county officials. If they want the public’s trust in the justice center process, then they can’t try to conduct the public’s business in secret.
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