While the city of Loveland is accepting applications for a new city attorney, the interim city attorney has implemented an email policy that some say goes against the spirit of transparency and of the state’s open records law.

In August, the city of Loveland launched a transparency email tool that made Loveland City Council members’ emails accessible to the public online in real time. The move came several years after Larimer County commissioners and Fort Collins City Council members had implemented similar systems on their respective governments’ websites.

But, following what city officials said were security issues on the part of the email provider, staff agreed to a change in the system: emails would still be available online, but users would see them after a delay of one business day.

Colorado’s Open Records Act ensures the public has access to their local elected leaders’ emails, but it doesn’t require them to be posted online: “Open records act creates a general presumption in favor of public access to government documents, exceptions to the act must be narrowly construed, and an agreement by a governmental entity that information in public records will remain confidential is insufficient to transform a public record into a private one. Daniels v. City of Commerce City, 988 P.2d 648 (Colo. App. 1999).”

Often, emails from the Loveland city attorney’s office would show up in the online email system as the city attorney and assistant city attorneys communicated with City Council members.

However, a notable change occurred after interim City Attorney Clay Douglas took over in November, following the resignation of former attorney Tami Yellico. More of the email communication between council members and the City Attorney’s Office were marked private or confidential — inaccessible to the public in the online database.

In a weekly list of restricted emails that would display subject lines of the emails, an attorney would often block out the subject lines as well.

A Colorado Open Records Act request for Douglas’ emails was fulfilled only in part — 37 pages were released, but others were withheld.

The emails released covered routine, non-confidential, topics as well as updates on city occurrences and even one update on a court case (court documents are considered public record unless sealed by a judge). Each had initially been withheld under the claim of attorney-client privilege.

Douglas then sent an email to Loveland City Council members about the Reporter-Herald open records act request, but a request to see that email’s contents was denied, citing “privileged attorney-client communication.”

However, the Reporter-Herald obtained a copy of that email, which read: “Following up on my previous message, this is to apprise you that, in response to this CORA request, the City has produced 37 pages of email correspondence and withheld 34 pages, as privileged attorney-client communication.”

In previous interviews, Douglas said he considers any emails between City Council members and himself as “attorney-client privilege,” and therefore exempt from release unless authorized by the City Council.

In an interview Friday afternoon, he acknowledged that he may have “misspoke.”

Executive director of the Colorado Freedom of Information Coalition Jeff Roberts said that while the open records law allows the city to withhold certain privileged information, “… this exemption ought be used for communications that actually involve legal advice.”

“It shouldn’t be used to blanketly deny records that the public is entitled to inspect. And merely labeling a public record as ‘private’ or ‘confidential’ doesn’t exempt it from disclosure under the law,” Roberts wrote in an email.

Additionally, Roberts said the subject lines of the emails should also be open for public inspection “unless they cannot be disclosed because of some specific exemption in CORA. The records custodian should redact any information deemed confidential under CORA and release the remainder. If the subject line doesn’t contain privileged or exempt information, the public is entitled to see it.”

Roberts added that when records are denied, the public could be entitled to a log explaining what is being withheld — a Larimer County district court judge ordered a privilege log to be produced for the parents of a special needs student in the Poudre School District in 2011. Another judge ordered a similar log in an animal rights case in Adams County in 2016.

Some City Council members have also expressed concern about what they see as a rise in restricted emails that are withheld from public view.

City Councilman Troy Krenning sent an email to City Council members on Jan. 10 asking that council members vote on releasing all emails between the city attorney and the City Council to the public.

He didn’t receive any responses to his email.

“I am concerned that a lot of what I have seen via ‘private’ email hardly qualifies as information that should not be made available to the public,” Krenning wrote. “When council (adopted) the new open email protocol it was with the intent and desire to allow the public more access to our email. Since that time the increase in ‘private’ email has increased significantly,” he wrote.

Krenning said a refresher about the state’s open records law might serve as useful.

“I may be way off base but it seems like a lot of routine information is being draped in privacy,” he wrote.

However, the emails continued, and an email from an assistant city attorney prompted Krenning to ask again for an explanation why an email “to advise council that Trump issued a freeze on new federal regulations” was considered confidential.

Councilman Don Overcash followed up with a response, saying he agreed with Krenning about the “apparent over marking of some emails as ‘private.'” He suggested the topic be discussed at the City Council retreat Saturday.

Overcash received no responses to his email and that email thread was also hidden from public view.

Additionally, because Douglas is serving as an interim part-time attorney, he will not be in attendance at the retreat.

Overcash said in an interview that he is not alleging misconduct but feels it would be appropriate to start a discussion on the email policy and the Colorado Open Records Act.

In an interview Friday, Douglas argued that not every email sent by his office is marked private or confidential anymore.

“We’re taking a closer look and trying to be more discreet,” Douglas said, adding that the process would include assessing emails more thoroughly and not painting them with a broad brush.

Still, he defended the blocking out of certain subject lines and restricting many emails to council members that he said he considers legal advice.

Douglas said “Loveland’s transparency project” requires more legal time and money than he’s used to from working with other municipal governments.

“That transparency initiative requires more time and attention to what can sometimes be a complex or at least an involved assessment of the content of a message,” he said.

Douglas urged that any articles written on the topic portray “an understanding and level of respect” in what he called the “current environment” of the email transparency tool.

Saja Hindi: 970-699-5404, hindis@reporter-herald.com, twitter.com/BySajaHindi.