Yesterday, Complete Colorado‘s Todd Shepherd asked a court to compel the Colorado Division of Insurance to explain why it will not release emails relating to the apparently-illegal move to renew health insurance policies not in compliance with Obamacare. To be clear, Shepherd is not suggesting that those plans should not be renewed, only that the Division of Insurance did not have the authority to unilaterally renew these plans, particularly as it was solely a political move meant to take the heat off of Sen. Mark Udall in a tough election year.
According to Shepherd’s complaint, the DOI used “deliberative privilege” to withhold the emails he requested. Deliberative privilege is when a governmental body is in the process of making a decision and does not want the revelation of this information to color the decision-making process. Of course, the issue here is that the decision had already been made. That’s why the emails were requested. So that doesn’t really apply here.
Further a Colorado court already weighed in on this one:
Conversely, postdecisional documents, communications made after the decision and designed to explain it, are not protected by the privilege. This distinction is supported by two considerations. First, the quality of a decision will not be affected by forced disclosure of communications occurring after the decision is finally reached. See Sears, 421 U.S. at 151, 95 S.Ct. 1504. Second, the public has a strong interest in the disclosure of reasons that do supply the basis for an agency policy actually adopted. See id. at 152, 95 S.Ct. 1504; Taxation with Representation Fund, 646 F.2d at 678. “These reasons, if expressed within the agency, constitute the ‘working law’ of the agency,” and as such should be disclosed to the public. Sears, 421 U.S. at 152, 95 S.Ct. 1504.8
This seems to be a pretty open and shut case, but the players in this issue have been so slimy, it will be interesting to see how the DOI tries to maneuver out of this one. And, further, just what is in those emails that’s so bad…?
