Delta County commissioners reverse FOIA denial, seek outside review of exempt emails and set follow-up meeting

Delta County commissioners voted Thursday to reverse the denial of a public-records appeal and to pursue external review for a narrow set of exempted emails, then scheduled an additional meeting to finish a related appeal.

The board acted during a Feb. 13 special meeting called by County Clerk Nancy Prezrocki and held at the Delta County Service Center. Commissioners took three formal steps: they reversed the denial for a records appeal that the board said involves documents currently held by outside counsel; they authorized seeking an opinion from an MMRMA FOIA expert on a subset of exempted emails (after first asking the county prosecuting attorney to review for any conflict); and they added a follow-up meeting on Feb. 18 to complete work on a separate appeal with an impending deadline.

Why it matters: The actions respond to time-limited requirements under Colorado public-records procedure for appeals and aim to resolve whether attorney-client or other exemptions apply to specific email records. Commissioners said failing to identify nonexempt material before a judicial review could expose the county to attorney-fee or other costs.

What the board decided - Reverse denial of FOIA appeal number 2506: The board determined the earlier denial was premised on county staff not possessing requested records, but the records appear to exist with outside counsel (Attorney Graham). The board approved reversing the denial so the county may obtain the documents from Graham, have the FOIA coordinator review the materials, segregate exempt from nonexempt items, and release all nonexempt documents.

- Seek third-party review for specific exempted emails: A commissioner asked the county to obtain a non-county opinion from MMRMA’s FOIA expert about a small set of emails that one commissioner said she believed were wrongly classified as exempt. The board approved a motion to permit a commissioner to consult MMRMA. Members amended that motion so the county’s prosecuting attorney (Prosecutor Whitman, as referenced in the meeting) would first review the specific emails; if the prosecutor determines a conflict exists, the county will proceed to obtain the outside MMRMA opinion. Commissioners discussed, but did not set, a fixed expenditure cap; one commissioner said they would prefer using county counsel first to limit outside spending.

- Schedule follow-up meeting: Because several FOIA timelines fall in the coming days, commissioners added an additional meeting for Feb. 18 at 09:15 a.m. to address a separate appeal item listed in the transcript as FOIA 02/1000 (the transcript shows multiple internal reference numbers used during discussion). The board also noted other upcoming regular meetings on Feb. 18 at 5:15 p.m. and March dates.

Process and timing clarifications County members explained three formal options in an appeal: reverse the denial, uphold the denial, or reverse in part; they said the board must choose one option now to meet the appeal timeline. For the appeal reversed at Thursday’s meeting, the board directed county staff to secure the documents from outside counsel and assigned the FOIA coordinator to review materials and publish nonexempt records after exemptions are applied. Commissioners and staff discussed the practicalities of compelling production from an outside attorney if necessary, and several members emphasized they did not expect a protracted dispute but acknowledged FOIA appeals can take time.

Legal review and conflicts Board members debated whether the county’s prosecuting attorney had a conflict if emails relate to the prosecutor’s office. County staff (identified in the meeting as Ashley, the FOIA coordinator) said some exempt decisions were made with legal input and some were made independently; the board amended its motion to route the contested subset first to the prosecuting attorney for a conflict check. If the prosecutor determines a conflict exists, the board authorized consulting MMRMA’s FOIA expert to provide an independent determination.

Votes and meeting logistics The transcript records motions carried by voice vote ("All in favor? Aye." "Anybody opposed? Motion passed.") without roll-call tallies. Commissioners present at roll call were Commissioner Johnson, Commissioner Williams, Commissioner Benjamin Hovland, Commissioner Jensen and Chair Niemann. The board scheduled a special meeting for Feb. 18 at 09:15 a.m. to address the remaining FOIA appeal work and to meet the applicable deadline referenced in the discussion.

What the board did not decide Commissioners did not set a specific dollar cap for outside review fees and did not identify the exact invoice amount for prior MMRMA work; one speaker estimated that prior fees were not large but the exact figure was not provided. The board did not disclose which specific email headers or unique identifiers would be referred to MMRMA in the absence of an internal conflict finding.

Next steps County staff were directed to seek the documents from Attorney Graham, have the FOIA coordinator separate exempt and nonexempt records, and to involve the prosecuting attorney to determine whether a conflict requires an outside reviewer. The follow-up meeting on Feb. 18 is intended to resolve the remaining appeal before the timeline noted in the meeting lapses.

Ending note: The actions were procedural steps to meet public-records appeal deadlines and to reduce the risk of later judicial review; commissioners stressed the goal of releasing any nonexempt material while protecting legitimate privileges where they apply.