First Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 13-0838.01 Bob Lackner x4350 HOUSE BILL 13-1313 HOUSE SPONSORSHIP Peniston, SENATE SPONSORSHIP Hodge, House Committees Senate Committees Local Government A BILL FOR AN ACT Concerning procedures governing discussions by local public bodies held in executive session under the Colorado open meetings law. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Under current law, the minutes of a meeting of a local public body during which an executive session is held are required to reflect the topic of the discussion at the executive session. The bill additionally requires the minutes to reflect the amount of time each topic was discussed. Under current law, if, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording of the part of the discussion that constitutes a privileged attorney-client communication may be made. The bill deletes this requirement. Accordingly, under the bill, discussions occurring in an executive session of such body that must be electronically recorded include all or any part of the executive session that is claimed by the attorney representing the local public body either to constitute a privileged attorney-client communication or to be subject to protection as trial preparation material. The bill additionally requires a local public body to maintain a privilege log that will allow identification of each portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. The privilege log is required to describe the nature of the communications not disclosed, and the approximate time in the executive session during which the communications not disclosed were discussed, in such manner that, without revealing information itself privileged or protected, other parties are enabled to assess the applicability of the privilege or right to protection. The bill further permits the local public body to make a separate recording of that portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. Where a local public body claims through its attorney that all or any portion of the record of the executive session of such body either constitutes a privileged attorney-client communication or is subject to protection as trial preparation material, any member of the local public body may apply to a court for the determination of the validity of the claim of privilege or protection in accordance with the Colorado rules of civil procedure and related court procedures for addressing such claims. Upon a determination by the court that all or any portion of the record either constitutes a privileged attorney-client communication or is subject to protection as trial-preparation material, the privileged communication or protected material is not subject to public inspection so long as the privilege or right of protection continues to apply. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 24-6-402, amend (2) (d) (II), (2) (d.5) (II) (A), (2) (d.5) (II) (B), and (2) (d.5) (II) (C); and add (2) (d.5) (II) (C.5) as follows: 24-6-402. Meetings - open to public - definitions. (2) (d) (II) Minutes of any meeting of a local public body at which the adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs or could occur shall must be taken and promptly recorded, and such records shall must be open to public inspection. The minutes of a meeting during which an executive session authorized under subsection (4) of this section is held shall must reflect the topic of the discussion at the executive session and the amount of time each topic was discussed. (d.5) (II) (A) Discussions that occur in an executive session of a local public body shall must be electronically recorded. If a local public body electronically recorded the minutes of its open meetings on or after August 8, 2001, the local public body shall must continue to electronically record the minutes of its open meetings that occur on or after August 8, 2001; except that electronic recording shall is not be required for two successive meetings of the local public body while the regularly used electronic equipment is inoperable. A local public body may satisfy the electronic recording requirements of this sub-subparagraph (A) by making any form of electronic recording of the discussions in an executive session of the local public body. Except as provided in sub-subparagraph (B) of this subparagraph (II), the electronic recording of an executive session shall must reflect the specific citation to the provision in subsection (4) of this section that authorizes the local public body to meet in an executive session and the actual contents of the discussion during the session. The provisions of this sub-subparagraph (A) shall do not apply to discussions of individual students by a local public body pursuant to paragraph (h) of subsection (4) of this section. (B) If, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced pursuant to subsection (4) of this section, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording shall be required to be kept of the part of the discussion that constitutes a privileged attorney-client communication. The electronic recording of said executive session discussion shall reflect that no further record or electronic recording was kept of the discussion based on the opinion of the attorney representing the local public body, as stated for the record during the executive session, that the discussion constituted a privileged attorney-client communication, or the attorney representing the local public body may provide a signed statement attesting that the portion of the executive session that was not recorded constituted a privileged attorney-client communication in the opinion of the attorney The recording of an executive session that is required by sub-subparagraph (A) of this subparagraph (II) must include all or any portion of the executive session that is claimed by the attorney representing the local public body either to constitute a privileged attorney-client communication or to be subject to protection as trial preparation material. The local public body shall maintain a privilege log that will allow identification of each portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made. The privilege log must describe the nature of the communications not disclosed, and the approximate time in the executive session during which the communications not disclosed were discussed, in such manner that, without revealing information itself privileged or protected, other parties are enabled to assess the applicability of the privilege or right to protection. Any portion of the executive session as to which the claim of privileged attorney-client communication or right to protection as trial preparation material is made may be recorded separately from the recording of the portion of the executive session to which no claim of privilege or right to protection as trial preparation material is made. (C) Except as otherwise provided in sub-subparagraph (C.5) of this subparagraph (II), if a court finds, upon application of a person seeking access to the record of the executive session of a local public body in accordance with section 24-72-204 (5.5) and after an in camera review of the record of the executive session, that the local public body engaged in substantial discussion of any matters not enumerated in subsection (4) of this section or that the body adopted a proposed policy, position, resolution, rule, regulation, or formal action in the executive session in contravention of subsection (4) of this section, the portion of the record of the executive session that reflects the substantial discussion of matters not enumerated in subsection (4) of this section or the adoption of a proposed policy, position, resolution, rule, regulation, or formal action shall be open to public inspection pursuant to section 24-72-204 (5.5). (C.5) Notwithstanding any provision of sub-subparagraph (C) of this subparagraph (II), where a local public body claims through its attorney that all or any portion of the record of the executive session of such body either constitutes a privileged attorney-client communication or is subject to protection as trial preparation material, any member of the local public body may apply to a court for the determination of the validity of the claim of privilege or protection in accordance with the Colorado rules of civil procedure and related court procedures for addressing such claims. Upon a determination by the court that all or any portion of the record either constitutes a privileged attorney-client communication or is subject to protection as trial-preparation material, the privileged communication or protected material is not subject to public inspection so long as the privilege or right of protection continues to apply. SECTION 2. Applicability. This act applies to meetings of local public bodies that take place on or after the effective date of this act. SECTION 3. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.