DISTRICT	COURT, EL	PASO COUNTY,	COLORADO 270	S.	Tejon Colorado	Springs,	CO	80901

COURT	USE	ONLY LESLIE	WEISE ,

Petitioner

v.

COLORADO	SPRINGS	UTILITIES ,
Respondent Case	Number: 2015CV

_____________

Div.:															Ctr m: Leslie	Weise, Pro	Se 17780	Caribou	Drive Monument,	CO	80132 Phone	Number:	(303)	523

- 0016 Email: leslie@weise.us

PETITION	FOR	ORDER	REQUIRING	DISCLOSURE	OF	CERTAIN	PUBLIC	RECORDS UNDER	THE	COLORADO	OPEN	RECOR DS	ACT

This	case	involves	the	wrongful	withholding	of	public	records	by	the	Colorado	Springs Utilities	(“CSU”)	in	violation	of	the	Colorado	Open	Records	Act	(“CORA”	or	“Act”), C.R.S.	24

- 72

- 204(3)(a)( IV ) ,	24

- 72

- 201, et	seq

. In	support	of	this	petition ,	the	followin g facts,	law	and
other	relevant background information are	respectfully	submitted	to	the District	Court	in El	Paso	County,	4 th Judicial	District (Court)

.2 Petitioner,	Leslie	Weise,	acting Pr o	Se , petitions	this	Court	for	an	order	requiring	di sclosure of	certain	records	responsi ve	to a	request	I	made to	Colorado	Springs	Utilities	(CSU) under the	Colorado	Open	Records	Act	(CORA),	C.R.S. §§ 24

- 72

- 201, et	seq. The	public	records requested	are	relevant	to serious inquiry	by many interested	citizens whether	Colorado Springs	is	in	compliance	with	National	Ambient	Air	Quality	Standards	(“NAAQS”)	for	sulfur dioxide	(“SO2”) established	under	the	Federal	Clean	Air	Act , concerning certain	regulated
criteria pollutants	emitted	by	the	Martin	Drake	Power	Plan t. 1 Respondent	attempts	to wrongfully	withhold	public	documents,	citing	they	are		“privileged” under 24

- 72

- 204(3)(a)(IV) (see	p aragraph s	3	and	6, below)

.

I. Jurisdiction	and	Venue
Petitioner is	a	resident	of	El	Paso	County,	and	Respondent	is	a	governmental organization	within	the	City	of	Colorado	Springs,	also	within	El	Paso	County

. The	act	of improper	withholding	of	public	records in	violation	of	CORA took	place	by	Respondent against	Petitioner	within	this	jurisdiction.			Therefore,	Petitioner submits	tha t	this	Court has	jurisdiction	over	this	matter	and	that	this	is	the	proper	venue	for	resolving	this	dispute.

II. Factual	Background

– Summary	of	Communications	Regarding	Public Records	Withheld	by	Respondent

1. I,	Petitioner, submitted a n	open	records	CORA r equest	to	C SU on	August 1 4,	2015 ( “ Weise	CORA ” )

. 2 T he Weise CORA contained	a	request for information and	records
relevant	to Colorado	state,	and	federal air	quality regulations and whether	Colorado Springs	was	in	compliance	with standards	set	forth	therein

. T he specific	requests	for
records included in	the	Weise	CORA	are as	follows:

1 More	than	a	dozen	Colorado	Springs	citizens	attended	and	spoke to	AQCC	Commissioners during public	comment	session	of	the	August	20,	201 5	Public	Hearing for	Colorado	Springs	compliance designation ,	and	more	so	provided	written	comment	in	advance. https://www.colorado.gov/pacific/sites/default/fi les/082015

- SO2

- comments_1.pdf A petition	in protest	of	the	“unclassifiable”	designation recommendation made	by	APCD	was also submitted	to AQCC. http://petitions.moveon.org/sign/epa

- colorado

- springs
2 Exhibit	1	is	the Weise	CORA, August	14,	2015	open	reco rds	requested	submitted	by	Petitioner,	to Colorado	Springs	Utilities ,	Respondent

.3 1.	All	contracts	entered	into	directly	or	indirectly	by	Colorado	Springs	Utilities	with AECOM	to	provide	modeling	or	any	other	services	regarding	air	issues	with	regard to	the areas	affected	by	the	Martin	Drake	and	/	or	the	Ray	Nixon	power	plants	since January	1,	2012. 2.	All	progress	reports,	studies,	results	and/or	invoices	received	by	CSU	with	regard	to such	contracts	with	AECOM	referenced	in	the	preceding	request.

2. On	Aug ust	18,	2015,	John	Butler	of	CSU	replied	by	email	and	provided	a	partial

response to	the Weise	CORA that	included	a	single	document	(the Professional	Services Agreement	for	air	quality	services between AECOM Technical	Services, Inc. and	CSU ,	the

“ AECOM	CSU Air	Quality	Services Contract ” ) 3 while	also	informing	me	that:

Additional	documents	that	may	be	responsive	to	your	request	are	being	reviewed	to determine	whether	or	not	they	are	subject	to	mandatory non - disclosure	under CORA. Colorado	Springs	Utiliti es	will	provide	those	documents	if	it	is	determined	they may	be	released	under	CORA	as	soon	as	this	review	is	complete. If	it	is	determined	they may	not	be	disclosed,	Utilities	will	so	notify	you	and	cite	the	basis	for	the	non

disclosure	as	requested	in	y our	CORA	request.

3. On	August	20,	2015,	John	Butler	again	emailed	me	with	another	single	document	(an
invoice	dated May	28,	2015 submitted	by AECOM to	CSU under	the	AECOM	CSU	Contract
“Invoice	1” ) 4 ,	while	also	informing	me	that:

Additional	documents	r esponsive	to	your	request	have	been	redacted	in	their entirety	on	the	basis	that	they	are	subject	to	mandatory	non

- disclosure under	CORA	pursuant	to	s.	24

- 72

- 204(3)(a)(IV),	C.R.S.,	because	they	contain privileged	information.

4. On	August	28,	2015,	John	B utler	again	emailed	me	that	he	had	discovered	additional records	responsive	to	the	Weise	CORA,	and	attached	two	more invoices	submitted	by
AECOM	to	CSU for	work	AECOM	performed	in	2015 under	the	AECOM	CSU Air	Quality

3 Exhibit 4 is	the	Professional	Services	Agreement	between	Colorado	Springs	Utilities	and	AECOM Technical	Services,	Inc.	dated	December	2,	2013.
4 Exhibit 2 ,	is	the	Ma y	28, 2015	Invoice	1	by	AECOM	to C S U,	Invoice	#	37571641.4 Services Contract (Invoices	2	and	3)

. 5

5. On	September	17,	2015,	I	emailed	John	Butler	requesting	that	CSU	reconsider	its ’ withholding	of	public	records from the	Weise	CORA. While	at	the	time	I	improperly confused	law	concerning	the	deliberative	process	privilege	with	that	of	the	attorney

- c lient privilege,	the	substance	of	the	request made (for	reconsideration	of	the	withholding)	was clearly communicated	by	Petitioner , received by	Respondent and then refused (see paragraph	6	below)

. The	contents	of	the	communication I	sent	are as	follows:

Dear John, As	a	follow	up	to	your	August	20,	2015	response	below,	I	would	like	to	request reconsideration	of	the	redaction/withholding	of	requested	results	conducted	by Colorado	Springs	Utilities	(CSU)	vendor	AECOM,	for	which	three	invoices	by	this	vendor have been	(or	are	currently	being)	processed	by	CSU. It	is	believed	that	these	vendor results	contain	technical	information	regarding	air	quality	analysis	near	the	Martin Drake	Power	Plant	and/or	overall	Colorado	Springs	region. Pursuant	to	the	provision	of the	CORA	statute	you	cited	for	the	withholding, 24

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- 204(3)(a)(IV),	C.R.S.	(copied	below), a	custodian	may	deny	the	right	of	inspection	of certain	records	on	the	basis	that	it	contains	trade	secret s ,	privileged	information,	and other	statutorily

- permitte d	subject	matter	exclusions. However,	upon	review	of	the statute	including	the	annotations	(the	relevant	section	also	copied	below	with highlight),	it	is	clear	that	the	right	to	withhold	information	under	the	"privileged information"	exception	only	applie s	to	"material	prepared	by	a	governmental employee". Since	the	requested	information	was	in	fact	prepared	by	a	vendor	which CSU	has	contracted,	payment	for	which	undoubtedly	flows	from	the	ratepayer

- owners of	CSU,	this	exception	would	not	apply.
Accordi ngly ,	please	recognize	this	oversight	on	your	part	and	provide	the	requested information	at	your	earliest	convenience.

Sincerely, Leslie	Weise

24

- 72

- 204:

5 Exhibit 3 ,	includes the June	24,	2015	Invoice	2	by	AECOM	to C S U,	Invoice	# 37584436;	and the July	29 ,	2015	Invoice 3 by	AECOM to C S U,	Invoice	# 37600375.5 (3)	(a)	The	custodian	may	deny	the	right	of	inspection	of	the	following	records,	unless otherwise	p rovided	by	law,	on	the	ground	that	disclosure	to	the	applicant	would	be contrary	to	the	public	interest: (IV)	Trade	secrets,	privileged	information,	and	confidential	commercial,	financial, geological,	or	geophysical	data,	including	a	social	security	numbe r	unless	disclosure	of the	number	is	required,	permitted,	or	authorized	by	state	or	federal	law,	furnished	by or	obtained	from	any	person; https://www.sos.state.co.us/pubs/info _center/files/CORA_Act.pdf

6. On	September	21,	2015,	I	received	a	response	by	email	from	“Colorado	Springs
Utilities”	from	the	email address CORA@csu.org with	the	following	contents:

Ms.	Weise, Colorado	Springs	Utilit ies	is	in	receipt	of	your	request	for reconsideration	of	Utilities' determination	that	certain	records	that	may be	responsive	to	your	August	14,	2015, Colorado	Open	Records	Act	(CORA) request	are	subject	to	mandatory	non

- disclosure under	CORA. Utilities	a nd the	City	Attorney's	Office	have	reviewed	your	request	for reconsideration and	the	original	basis	of	denial	of	certain	records	pursuant	to	Section 24

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- 204(3)(a)(IV),	C.R.S.,	and	have	reaffirmed	that	the	records	you requested	are subject	to	mandatory	no n - disclosure	as	"privileged information"	under	the	cited exemption. For	this	reason,	respectfully,	the original	decision	to	withhold	the	records will	remain. Thank	you, Colorado	Springs	Utilities

7. Petitioner	submits	this	Petition	for	Order	Requiring	Di sclosure	of	Certain	Public Records	Under	the	Colorado	Open	Records	Act. Respondent	has wrongfully	withheld	public records,	and in	so	doing has abused	its	discretion under	CORA

. As	discussed	below, the
withheld	doc uments	are	not	subject	to “mandatory	non

- d isclosure”	as	Respondent	has claimed,	as	the	information	withheld	cannot	by	its	nature	and	under	the	law,	be	classified as	“p rivilege d	information ” and	therefore	must	be	disclosed	to Petitioner

. Thus, Petitioner requests	that	the	Court accept	this Petition ,	declare	that	C SU violated	CORA	by	wrongfully withholding	public	records,	direct CSU to	produce	the	requested records to Petitioner
within three days	of	the	Court ’s	order ,	and	order	other	relief	requested	herein	or	which	the Court	deems	appropriate.6 III. Additional Factual Background Concerning Petitioner’s	Right	to	Public
Records
8. I, Leslie	Weis e , am	a	resident	of	Monume nt,	Colorado,	in	El	Paso	County .		My son attends	4 th grade	at	a	public	charter	school	in	Colorado	Springs located	2.5	miles	from	the Martin	Drake	Power	Plant	owned	and	operated	by	the	Colorado	Springs	Utilities	(CSU).		It has	been	demonstrated	by multiple professional, technical air	quality studies that	the
school	is located directly within	the	sulfur	dioxide	(“SO2”)	pollution	plume	pa th	emitted	by the	Martin	Drake	Plant,	an	important	factor	driving	my	involvement	in	this	matter	and	my pursuit	to	obtain	access	to	the	documents	withheld	by	Petitioner	for	which	review	by	the Court	is	sought. (See	paragraph	11	and	footnote 8 ,	Modeling	Repo rts	I

- III). My	goals	in

pursu ing	this	matter are to	ensure	the	air	is	health y to	breath e near	my	son’s	school and throughout	the	Colorado	Springs	region	where	my	family regularly frequents. 6 The	only way	I	can	ensure	that	the	air	is	healthy	is	by	revie wing	documents	in	possession	of CSU

— the	government al municipal	utility responsible	for managing	emissions	from	the	Martin
Drake Power Plant	and ensuring air	quality complies with	ambient	air	quality	standards required	by	the	State	of Colorado and	the	feder al	government .		As	discussed	below, CSU has wrongfully	withhe ld	public records rele vant	to	whether	the	air	quality	in	Colorado Springs complies with National	Ambient	Air	Quality	Standards	(“NAAQS”)	for	the	1

- hour	sulfur
dioxide	standard.		I	ask	this	Cou rt to	order	C SU to	produce	those records to	protect a Mother ’s	right	to	the information necessary to	protect	her child from	potential ly unhealthy air	quality	in	Colorado	Springs.
9. In	2010,	the	U.S.	Environmental	Protection	Agency	( US EPA)	promulgated	a	revise d primary	National	Ambient	Air	Quality	Standard	(NAAQS)	for	sulfur	dioxide	emissions	as	a
1

- hour	average	( referred	to	herein	as “2010	Revised	NAAQS	SO2	Standard”	or	“NAAQS Standard”).
10. On	March	17, 2011, the	Air	Pollution	Control	Division	(APCD)	of the	Colo rado Department	of	Public	Health	and	Environment	( CDPHE ) submitted a determination	to	the Air	Quality	Control	Commission	for	the	State	of	Colorado	(AQCC)	and	the US	EPA , stating

6 http://gazette.com/drake

- gets

- more - time

- for

- air

- quality

- compliance

- after

- state

- commission

ruling/article/15577837 that	all	regions	within	the	State	of	Colorado	were	either	in	“attainment”	or	w ere “attainment	/	unclassifiable”	under	the	NAAQS	Standard. 7
11. Between	2011	and	March	2015, multiple	analyses	of	air	quality	in	the	Colorado Springs	region	conducted	independently	by	two	professional	air	quality	engineering	firms,
showed	serious	violations	o f	the 2010	Revised NAAQS	SO2	Standard	concerning	sulfur
dioxide	emissions. 8 T hese	studies were individually submitted	to	both	CSU	and CDPHE

. Because	of	the exceedances	of	federally	defined	air	quality	limits	concerning	SO2 in	the Colorado	Springs	region ,	it	was sepa rately determined	by	these	two	firms	that	Colorado Springs	should	be	properly	designated	as	“non

- attainment”	of	the	NAAQS	Standard. Based on	public	records available ,	neither CDPHE	nor	CSU	had	conducted	any	similar	studies	of air	quality	compliance	of	th e	NAAQS	Standard	in	the	Colorado	Springs	region,	with	the possible	exception	of	work	performed for	CSU by	AECOM in	2015	under	the AECOM	CSU Air	Quality	Services	Contract described	below.	P ublic information concerning	this	work	by CSU’s	air	quality	service s vendor AECOM has	been wrongfully withheld	by	Respondent	and is	the	subject	of this	Petition.

7 AQCC	Agenda	Item	Summary	for August	20,	2015 Public	Hearing,	dated	June	2,	2015, page	2, at: https://www.colorado.gov/pacific/sites/default/files/061815

- SO2

- materials.pdf
8 On	March	28,	2013	the	Sierra	Club	submitted	to	CDPHE	a	modeling	analysis	and	report	of	air quality	of	the	Colorado	Springs	region	that	had	been	conducted	by	an	experienced air	quality professional	engineering	firm	Wingra	Engineering	(Modeling	Report	I).	This	report	demonstrated that	emissions	from	the	Martin	Drake	Coal	Plant	were	causing	serious	violations	of	the	2010 Revised	1

- hour	NAAQS	SO2	Standard	in	Colorado	Springs	and thus	the	area	should	be	designated	as “non

- attainment”.	Prior	to	the	August	20,	2015	Compliance	Designation	Hearing,	on	August	5,	2015 the	Sierra	Club	submitted	to	CDPHE	an	updated	air	quality	modeling	analysis	of	the	Colorado Springs	region	(Modeling	Rep ort	II).	Additionally,	APCD	had	received	another	engineering	firm’s modeling	analysis	and	report	in	September	2013	(independent	of	all	Sierra	Club	submissions), which	separately	demonstrated	serious	violations	of	the	2010	NAAQS	SO2	Standard	in	the	Colorado Springs	region	due	to	SO2	emissions	from	the	Martin	Drake	Power	Plant	(Modeling	Report	III). Modeling	Report	I	submitted	to	CSU	and	CDPHE	by	Sierra	Club	dated	October	4,	2012,	at: http://content.sierraclub.org/coal/sites/content.sierraclub.org.coal/files/Evaluation%20of%20Co mpliance%20with%20the%201

- hour %20NAAQS%20for%20SO2%20

- %20Martin%20Drake%20CO%20DRAFT,4oct12.pdf Correspondence	submitted	by	Sierra	Club	to CDPHE	on	August	7,	2015	regarding	its	updated	Modeling	Report	II	dated	August	5,	2015, page	17 at https://www.colorado.gov/pacific/sites/default/ files/082015

- SO2

- comments_1.pdf Correspondence	submitted	by	M.	Barrett,	Professional	Engineer,	Air	Expertise	Colorado,	LLC,	to Garry	Kaufman,	Deputy	Director,	APCD,	dated	March	5,	2014	regarding	Modeling	Report	III	dated September	23,	2013,	at: http://www.draketaskforce.net/yahoo_site_admin/assets/docs/AECtoCDPHE

- Kaufman3

- 5

- 14.68113008.pdf8 12. Pursuant	to	a Request	for	Information (RFI

– KV

- 105937 :	Air	Quality	Modeling	and Meteorology) published	by	CSU	on May	13,	2013 , the air	quality	services	firm,	AECOM
Tech nical	Services,	Inc.	(AECOM)	submit ted	a proposal on May	24,	2013

. CSU thereby selected	AECOM	from	multiple	third	party responses	to	the	RFI, and entered	into	a

“ Professional	Services	Agreement ” with	AECOM , having a “Project	Title: Air	Quality Meteorology	and	Modeli ng , ” and “ Contract	Number	201317272 ” , dated	December	2,	2013

. 9 The	scope	of	the AECOM	CSU	Air	Quality	Services	Contract is	set	forth	in	Exhibit	A to	the

contract , “ Statement	of	Work ” ,	which establishes AECOM’s	contracted	role for	which	it wa s entering	a	re lationship	to provide service s	to CSU :

“ Colorado	Springs	Utilities	requires	services	and	assistance	to	support	[its]	air	quality services	on	an	as	needed	basis.		This	is	expected	to	include,	but	not	be	limited	to	include demonstrations	of	compliance	with	N ational	Ambient	Air	Quality	Standards	(NAAQS) using	ambient	air	quality	monitoring	and	modeling	method.

As	needed,	the	Contractor	shall	assist	Utilities	with	air	quality	assessments,	air	quality modeling,	meteorological	monitoring	to	support	air	quality	a ssessments	and	modeling, and	minor	and	synthetic	minor	air	quality	permitting	to	support	Utilities’	compliance with	the	Clean	Air	Act,	Colorado	Air	Pollution	Prevention	and	Control	Act	and	related laws,	regulations,	policy	and	guidance.		All	assessments,	m odeling,	monitoring	and permitting	will	meet	regulatory	standards.

As	requested	by	Utilities,	the	Contra c tor(s)	shall	provide	professional	services	for ambient	air	quality	and	meteorological	data	analysis,	mete o rological	monitoring,	air quality	modeling, air	quality	permit	support	and	support	for	review	of	State	and	Front Range	air	quality	technical	reports	and	proposals.”

Nowhere	in	the	RFI,	proposal	or	con tract is	it anywhere specified	that	AECOM	would	be requested	or	required to	provide	information of	a	privileged	legal	nature	to	its client/customer	CSU.		It	is understood that any	and all	funds	used	to pay	for	the service s AECOM provides	CSU in	their	role	as a	contracted air	quality	services	provider are	from	its ratepayer /customer s. 13. Pursuant to	a	federal	legal	proceeding,	a Consent	D ecree	was	issu ed	by	a	Federal
District	Court	in	March 2015	(2015	Consent	Decree)	for	a	legal	action brought	by	the Sierra

9 Exhibit 4 ,	AECOM	CSU	Air	Quality	Services	Contract	da ted	December	2,	2013.9 Club	and	the	Natural	Resources	Defense Council	(NRDC)	(plaintiffs),	against the	US	EPA (d efe ndant),	as	filed	in	August	2013 .		P laintiffs	h ad asserted	that	the	US	EPA	is	not adequately	enforcing	the	NAAQS	Standard	for	sulfur	dioxide for	many	regions	throughout
the	U.S

. and	the	US	EPA	essentially	did	not	contest	the	assertions. The	2015	Consent
De cree	identified	Colorado	as	one	of	28	states that	would require	further	review	of compliance	under	the	Revised	2010	NAAQS	SO2	Standard. 10
14

. Concerning	Colorado,	CDPHE	was	required	to	submit	an	updated	recommendation to	the	US	EPA	for	the	air	quality	att ainment	status	concerning just two	specific	polluting sources	and	surrounding	geographical	areas,	one	of	which	being	the	Colorado	Springs region	concerning	sulfur	dioxide	pollution	emitted	from	the	Martin	Drake	Power	Plant (2015	Updated Colorado	Springs Compliance	Designation). 11 As	required	by	this 2015
Consent	Decree and	EPA	rulemaking	process ,	o n	August	20,	2015,	a	public	hearing	was
scheduled at	the	meeting	of	the	A QCC in	Denver,	at	which	the	APCD of	CDPHE was	to present its recommendation for the 2015 Update d	C olorado	Springs	C ompliance Designation (August	20,	2015	Public	Hearing).
15. From	the	Weise	CORA,	it	is	known	from	three	invoices	submitted	by	AECOM	to	CSU (Exhibits 2 and 3 ,	Invoices	1

- 3 )	that	the	only	work	that	was	performed	by	AECOM	since	the
date	of contract	commencement	of	December	2,	2013, occurred during	the	period	of	May	8

– July	17,	2015. 12 It	is	presumed	the	invoiced	work	was	requested	by	CSU. Therefore,	it was	only	after	Colorado	Springs	was	identified	as one	of just two	areas	in	the	State	of Colorado	requiring	further regulatory	review	(see	paragraph	13),	and	prior	to	the	August 20,	2015	Public	Hearing	when	CDPHE	was	required	to	provide	its	2015	Updated Colorado Springs Compliance	Designation	recommendation	to AQCC and	US	EPA	under	the 2015
C onsent	Decree (see	paragraph	14) ,	that	any	work	was	performed	by	AECOM	for	CSU under	the	contract	with	the	Project	Title	“Air	Quality	Meteorology	and	Modeling

. ” It	is	believed	that	CSU	is	withholding	from	the	public	important	records	concerning	this
factu al	air	quality	data	by	AECOM	that	may	impact	proper	designation	of	air	quality

10 http://www3.epa.gov/airquality/sulfurdioxide/designations/data.html

11 2015	Consent	Decree	found	on	pgs.	4

- 17,	at https://www.colorado.gov/pacific/sites/default/files/082015

- SO2

- materials.pdf

12 All	three	I nvoices 1

- 3 submitted	by	AEC OM	and received	by	CSU	responsive	to	the	Weise	CORA reference	the	AECOM	CSU Air	Quality	Service Contract	Number	201317272.10 compliance	in	the	Colorado	Springs	region	(Restricted	Air	Quality	Records) and	when properly	disclosed	could	inform	the	public	regarding	potentially	unhealthy	air	quality in
the	r egion

. 16

. It	was with the	concern of	ensuring	that	all	relevant	information	was	being considered	before	the	AQCC	and	US	EPA	for	this	matter	of	significant	implications	of	air quality	and public health including	that	of	my	son	at	his	school	located	direct ly	within	the modeled	plume	path	for	SO2 exceedances	of	the	NAAQS	Standard , that	I	submitted	the August	14,	2015 CORA	request in	response	to	which	CSU	withheld	public	records from
disclosure. By making	this open	records request	for	public	information ,	I w as attempting
to	learn what other, if	any,	air	quality	studies	had	been	conducted,	or	data	collected,	by	CSU (through	its	contracted professional	air	quality	services firm	AECOM) pertaining to	the matter	of	SO2	compliance	that	might also be	relevant	to	CDP HE’s	recommendation to	AQCC and	US	EPA, and that	may	not	have	been	included	in proper consideration	of	the	matter

. 17. The	public	benefit	of this	information concerning	public	health is obvious	and significant .		If	all	relevant	information	had	not	been	provide d	by	CSU	to	CDPHE,	or	not properly	considered	by	APCD,	it	may	be	found	that an	improper	designation	of	air	quality in	the	Colorado	Springs	region	may	be	found	to	have	occurred ,	thus directly	impacting	the
measures	that	should	be	taken	to	ensure the air	qua li ty	in	the	region	is	safe	for residents,
workers , visitors and	children

. 13 Over	387,000	total	residents (of	which over 120,000 children	and	teenagers under the age of 20)	live	within	a	five

- mile	radius	of	the	Martin Drake	Power	Plant,	where	approximately	4 0	schools	are	located including	that	which	my
son	attends

. Sulfur	dioxide	is one	of	six	common	air	pollutants	regulated	under	NAAQS,
and	is known to	cause adverse	respiratory and	other health effects	especially	with in vulnerable	populations,	including	chi ldren,	the	elderly,	and	asthmatics.

13 http://www3.epa.gov/airquality/sulfurdioxide/health.html C urrent	scientific	evidence	links short

- term	exposures	to	SO2,	ranging	from	5	minutes	to	24	hours,	with	an	array	of	adverse respiratory	effects	including	bronchoconstriction	and	increased	asthma	symptoms. These	effects are	particularly	important	for	asthma tics	at	elevated	ventilation	rates	(e.g.,	while	exercising	or playing.) Studies	also	show	a	connection	between	short

- term	exposure	and	increased	visits	to emergency	departments	and	hospital	admissions	for	respiratory	illnesses,	particularly	in	at

- risk pop ulations	including	children,	the	elderly,	and	asthmatics...	SOx	can	react	with	other	compounds in	the	atmosphere	to	form	small	particles.	These	particles	penetrate	deeply	into	sensitive	parts	of the	lungs	and	can	cause	or	worsen	respiratory	disease,	such	as emphysema	and	bronchitis,	and	can aggravate	existing	heart	disease,	leading	to	increased	hospital	admissions	and	premature	death.11 18. The	US	EPA	will	decide	whether	to	accept	CDPHE’s	2015	Updated	Compliance Designation	of	“unclassifiable”	for	the	Colorado	Springs	region sometime between	January
and early March	2016	pursuant	to	the	schedule	set	forth	in the	2015	Consent	Decree.		It	is
Petitioner ’s	belief	that Respondent is	attempting	to	withhold	the	Restricted Air	Quality
Records so	that	the relevant information contained	in	the	withheld records is	not	made publicly	available,	i.e. “of	record” to	the	US EPA	for	their anticipated	decision ,	and	to	avoid disclosure	of	the	extent	and	nature	of	potentially	unhealthy	air	quality	in	Colorado	Springs

.

IV. Petitioner ’s	Request	for	Oral	Argument	and	Expedited	Ruling Given	the	upcoming	imminent	review	and	decision by	US	EPA	for	designation	of	the Colorado	Springs	region	under	the	2015	Consent	Decree,	Petitioner	requests	an	expedited ruling	of	this	Matter. If	the	Court	believes	oral	argument	would	benefit	the	Court	in resolving	this	Petition,	Petitioner	is	willing and	able	to	participate. Accordingly,	Petitioner specifically	request s a	hearing	for	oral	argument and /or in	camera	review	of	the withheld information	(Restricted	Air	Quality	Records) by	the	Court ,	and	declines	to	waive	any	right that	may	be	available to Petitioner	to	participate in	this	matter if	the	Court	deems	it appropriate

. 14 Immediate	disclosure	of	the	withheld	documents	is extremely important for	reasons	of	public	health	and	safety	detailed	herein

.

V. Memorandum	in	Law	and	Fact	in Support	of the	P etition
CORA

– Disclosure	of	Public	Records	is	of	Paramount	Importance
Colorado	Revised	Statutes	24

- 72

- 201 sets	forth ,	"It	is	declared	to	be	the	public	policy	of this	state	that	all	public	records	shall	be	open	for	inspection	by	any	person	at	reasonable

t imes,	except	as	provided	in	this	part	2	or	as	otherwise	specifically	provided	by	law."

Attorney

- Client	Privilege	Information	Is	An	Exclusion	Available	Under	CORA

14 C.R.S.	24

- 72

- 204 (6) (a)	If,	in	the	opinion	of	the	official	custodian	of	any	public	record,	disclosure of	the	contents	of	sa id	record	would	do	substantial	injury	to	the	public	interest	...	the	official custodian	may	apply	to	the	district	court	of	the	district	in	which	such	record	is	located	for	an	order permitting	him	or	her	to	restrict	such	disclosure	or	for	the	court	to	determi ne	if	disclosure	is prohibited. Hearing	on	such	application	shall	be	held	at	the	earliest	practical	time. (emphasis	added)12 A	government	custodian	is	entitled	to	deny	the	right	of	inspection	of	privileged
information , properly	classified .	C.R.S.	24

- 72

- 204(3)(a)(IV).		The	privilege	is	available	to governmental	entities,	and may	include	certain qualifying	communications	made by	an Independent	Contractor. Alliance	Construction	Solutions v.	Dept.	of	Corrections,	54	P.3d	86 1 (Colo.	2002). The	burden	of	establishing	a	document	is	attorney

- client	privileged	is	on	t he	claimant	of the	privilege.		In	this	case,	R espondent	has	failed	to	meet	that	burden as	it	has	provided	no justification	why	the	privilege	is	proper

– but	has	on ly	declared	it	to	be	so.		It is	Petitioner’s contention	that	no	such	justification	exists

.

Attorney

- Client	Privilege	is	Not	Available	For	Public	Records	Withheld
The	Court	in Alliance	Construction	Solutions makes	clear	that	all	elements of	a	four

- part

t est must	be	met	for	an	independent	contractor’s	communications	to	fall	within	the privilege. Alliance	Construction	Solutions at	861. First,	t here	must	exist	a :

“ significant	relationship	not	only	to	the	governmental	entity	but	also	to	the	transaction tha t	is	the	subject	of	the	governmental	entity’s	need	for	legal	services.		This	type	of relationship	between	the	client	and	the	informat ion

- giver	must	be	closely	analyz ed	to determine	the	application	of	the	privilege .” Id. 15
Neither	the	RFI	that	CSU	released in	2013,	nor	the	response	to	RFI	that	AECOM submitted	from	such	request,	nor	the	contract	that	CSU	and	AECOM	entered in	December
2013 ,	mentions	anywhere	that	privileged	legal	advice	might	be	sought	or	provided regarding	air	quality	matters	under	the	relat ionship.		Indeed,	all	regulatory	related	data	is “legal”	in	nature for	its	intended	use to	ensure	adherence by	a	polluting	industrial	source (CSU) , of its	operations within	the laws by which	they	are	regulated

-- such	as in	the present	case, NAAQS under	the Federal	Clean	Air	Act .		CSU	may	not	now	isolate	an	instance where	it	sought	such	very	type	of	air	quality	information	pertaining	to	compliance	with regulations,	and	assert	that	information	is	sub ject	to	“privilege ” because	it	wants	to	shield
the	results	f rom	the	public	and	the	federal	government. Here,	CSU	contracted	AECOM	in
2013 (nearly	two	years	prior	to	the	additional	scrutiny	brough t	on	by	the	2015	Consent

15 Alliance	Construction	Solutions , Footnote	5 , makes	clear	that	the	privilege	cannot	be	de	facto applied	simply	to	resist	demand	for information	from	anothe r.13 Decree ) for	the	purposes	of	providing	air	quality	services	for	regulatory	matters of	this

ver y	nature .		CSU	cannot	use the vendor for	the	services	it	contracted	to	provide under	the relationship	that	was	established , and	then	for convenience,	assert	that	the	results	of	air quality	services	performed	fall	under	the	privilege. This	action	constitutes	an	improper
abuse	of	discretion	under	CORA	and violation	of	the	Federal	Clean	Air	Act. Nonetheless,	t he attorney

- client privilege	only	protects	against	disclosure	of communications,	not	the	underlying	facts	on	whic h	the	communication	is	based. National Farmers	Union	Prop.	&	Cas.	Co.	v.	Dist.	Court, 718	P.	2d	1044	(Colo.	1986). Even	if
R espondent can	establish	that the	communications	to	or	from	a	CSU attorney	give	rise	to	a reasonable	expectation	that certain statements would be	treated	as	confidential	legal advice,	it	must still	disclose the	underl ying	facts	of	the	communication	concerning	air quality	information	provided	by	the	services	vendor,	AECOM.		AECOM	is	a	service	provider to	CSU,	specifically	contracted	to	provide :

“ professional	services	for	ambient	air	quality	and	meteorological	data	anal ysis,
mete o rological	monitoring,	air	quality	modeling,	air	quality	permit	support	and support	for	review	of	State	and	Front	Range	air	quality	technical	reports	and proposals. “ 16

It	is Petitioner ’s	understanding that the work AECOM performed	for	CSU	in	2015 pertain ed	to air	quality	related	services , and	that	technical	data	would	have	resulted .		CSU may	not	hide	behind	the	“attorney

- client”	shield	out	of	convenience	to	avoid	providing	that important air	quality	related factual information	to	the	public.
U nd er National	Farmers , no	facts	generated	by	AECOM	for	CSU	(i.e.	air	quality,	technical data) can	even	be	considered	as candidates	for	withholding	under	the	privilege. National Farmers	Union	Prop .	at	1044. Notwithstanding, even a	request ( or	review	of	the request ) for	such	type	of	information by	the	legal	department of a	government entity	that	is	i nvolved
in	a federal	review of	air	quality	compliance through	a	federally	ordered	judicial	consent decree,	is	subject	to	mandatory	disclosure provisions	for	discl osure	of	“emissions”	related
data under	the	Federal	Clean	Air	Act. Determining	compliance	of	a	federal	regulatory	and legal mandate	(the	2015	Consent	Decree) concerning	safe	levels	of	air	quality	of	its
hundreds	of	thousands	of customers	and	the many visi tors	to	the	region	each	year,	is	a

16 E xhibit	4,	Statement	of	Work, Exhibit	A	to	the	AECOM	CSU	Air	Quality	Services	Contract.14 matter	among	the	highest of public	importance	and must	trump any	conceivable	exemption for	public	disclosure the	Respondent	is	acting	as	if	exists.

Attorney

- Client	Privilege	is	N ot	Available	For	Information	Generated	by Independent
Contractor	Under Existing	Professional	Services	Agreement
While Allia nce	Construction	Solutions acknowledges	that	certain	communications between	a	governmental	entity’s	legal	counsel	and	an	independent	contractor	may	be attorney

- client	privileg ed,	CSU	fails	to	meet yet	another	of the	four

- part	test	for	such privilege	to	apply. Specifically, another part that	CSU	fails	to	meet	is	that the	subject	matter
of	the	communication	must be	within	the	scope	of	the	duti es	provided	by	the	e ntity	by	its independent	contractor. Alliance	Construction	Solutions at 861. As	stated	previously,	the relationship	between	the	entities	must	be	examined	closely,	and	here	none	of	the	several documents	that	exist	that	establish	the	scope	of	the	relations hip	between	CSU	and	AECOM supports	that	privileged	information	could	be	sought,	including the	contract	that	CSU	and
AECOM	entered .		Nowhere	is	it	stated that services other	than	those	concerning regulatory / legal	compliance	for	air	quality	matters would be	provided	by	AECOM

. Here,	such relationship fail s the Alliance	Construction	Solutions test where a	distinction	is	made
between	the	treatment	of “sound	legal	advice” from	communications	regarding services	it otherwise	is	expected	of	the	independent	contractor based	on	the	relationship	that	has
been	established	between	the	two	e ntities

. Id

. And	even	if	CSU	leg al	counsel	directly	made such	a	request	of	such	nature	for	“legal	advice”	concerning	the	2015	Consent	Decree	to AECOM,	it would be	outside	the	scope	of	the	AECOM	CSU	Air	Quality	Services	C ontract,	and finally an i mpermissible	request	under	the	F ederal	Clea n	Air	Act	and	State	regulations which	require	that	all	“emissions	data”	from	“emissions	source”	be	made	available	to	the public	concerning	pollutants	monitored	under	NAAQS,	such	as	sulfur	dioxide ,	and	that	all
such	related	factual	information	be	disclosed under	CORA

.

Federal	Clean	Air	Act

– No	Data	Concerning	“Emissions	Data”

From	A n	“Emissions	Source” May	Be	Withheld	F rom	Public The	Federal	Clean	Air	Act,	42	U.S.C.	7401 , et	seq. provides	a Congressional	regulatory mandate	with	specific	statutory	protect ions	for the public ’s access	to	information15 concerning	the	emissions	data	from	pollutants	(sulfur	dioxide	and	others)	this	regulation safeguards	against	their	over

- exposure.		Information	protected	under	the	Federal	Clean	Air
Act	includes all	“ records,	repo rts,	and	implementation	plans ” used	“in	determining	whether any	person	is	in	violation”	of	such	plan. 40	C.F.R.	2.301(c). Further, 42	U.S.C.	7414	40	C.F.R. 2.301	(a)	requires	information	and	records	regarding “ emissions	data	from	an	emission

source ” to	be “ kept	by	an	Authority	to	that	source , ” and	40	C.F.R.	2.301	(c)	requires “ this information	be	made	available	to	the	public , ” with	the	only	exception	being	in	the	case	of

“ trade	secrets , ” which	Respondent	has	made	no	contention	the	Restricted Air	Quality
Re cords contain s

. It	is	specified	that	the	information	is	necessary	“to	allow	EPA	to	disclose publicly	that	a	source	is	(or	is	not)	in	compliance	with	an	applicable	standard	or	limitation, or	to	allow	EPA	to	demonstrate	the	feasibility,	practicability,	or	a ttainability	(or	lack thereof)	of	an	existing	or	proposed	standard	or	limitation.”	40	C.F.R.	2.301(a)(1)(C)(ii). The	Federal	Clean	Air	Act	mandates	that	only	a	trade	secret	may	be	withheld	from	the public	conce rning	any	and	all emissions	data	from	an	emiss ion	source ,	and	is	further
confirmation that	CSU	is	not	entitled	to	withhold	such	emissions

- related data	regarding SO2,	a	criteria	air	pollutant	monitored	under	the	A ct .		F actual	information	concerning	air quality	in	the	region affecting millions	of	people on	an	annual	basis is	not	subject	to	the privilege

. Not	only	are	the	withheld	r ecords	not	subject	to	the	attorney

- client	privilege under	CORA,	their	release	to	the	public	is	mandated	under this federal	law.

Respondent	Has	Improperly	Applied	Attorney

- C lient	Privilege	and
Public	Records Withheld Must	Be	Released In	summary,	there	is	no	right	for	CSU	to	withhold	technical	or	other	data	reque sted from	and/or	provided	by AECOM,	its	contracted vendor	of	professional	air	quality	services ,

even in	its	role	as “independent	contractor” to	CSU

. Respondent	cannot	use	the	“attorney

client	privilege”	as	a	shield	to	withhold	factual	data	concerning	air	quality	and	compliance with	federal	standards	for	pollutants	under	the Clean	Air	Act .		Conversely,	s uch	type	of
emi ssions	data	is	specifically	mandated	for	disclosure	under	the	Federal	Clean	Air	Act,	and is	of	critical	public	importance	as	it	directly	impacts	the	air	quality	and	health	of	residents
and	visitors	to	the Colorado	Springs area.		Further,	ratepayers/residen ts fund	and	are legally	and	administratively	the own er	of that	information	that	directly	impacts	their16 health	and	well

- being.		Finally,	this	information	is	relevant	to	a	federal	legal	action that the State	(CDPHE)	and	local	municipal	utility	(CSU)	is	under mandate	to	review	and	disclose	all relevant	information	to	the	State	of	Colorado	AQCC	and	the	US	EPA. 17 The	information withheld	from	the	Weise	CORA	must	be	ordered	for	release	by	the	government	custodian making	the	improper	withholding,	CSU. Upon	review of	this	m atter,	even	if the	Court	finds
that some	“privileged	information” does	exist within	the w ithheld Restricted	Air	Quality Records,	the	Court	must	order	release of those	sections	of	t he	records containing	non

privileged	factual	information	and/or	em issions	data

. CSU	may	not arbitrarily	or recklessly choose	to	deny	records	of	this	nature	by	“redact[ing]	in	their	entirety”	such	important information	that	belongs	to	the	public	for	multiple important health	and	policy	reasons.

Public	Benefit	to	the	Information	M ust	Be	Outweighed	by Rights
Available	to	the	Government	Custodian Even	outside	the	limited	exemption	for	Attorney

- Client	Privilege, CORA ,	state and federal	laws	(to	which	the	Restricted Air	Quality	Records concerning	this	m atter	pertain
under	the	Federal Clean	Air	Act)	make	clear	that	the	government	custodian	of	information
must	show	that	the extremely	high public	benefit	to	government	information	is	outweighed by any right that	may	exist	for	the	Government to	shield	information	from	the	public.
Informati on	reviewed	or	even	requested	by	a	legal	department	does	not	de	facto	shield
information	under a privilege	exception	of	CORA and	relevant	case	law .	Conversely,	such
information	is heavily weighted	toward	public	disclosure,	and	is	strongly	supportive	of	the
reason	for	the	CORA	and	FOIA	laws	to	exist

– to	protect	the	right	of	public	access	to government	information	as	a	method	to	check	the	proper	role	and	functioning	of government

-- which	citizen	taxpayers	fund! Here,	ample	reasons	exist	for	a	member	of	the public	to	discern	that	CDPHE and	CSU misrepresented	and/or	erred	in	its	analysis	and	judgment	for	its	Colorado	Springs	Region Compliance	Designations	of	“unclassifiable”.		The	public	has	a	right	to	know	if	this	is	the case,	particularly	when	the	public’s health	and	safety	is	directly	at	risk	from	the	actions CSU takes	on	behalf	of	its	ratepayers,	and that CDPHE	takes	on	the	entire	State’s behalf

17 See	footnote	11 supra ,	regarding	the	2015	Consent	Decree.17 concerning monitoring	and	regulating air	quality	and	dangerous	pollutants. All	facts, reasoning	and	justificati on	used	by	the	government	entity	to	make	such	determinations directly	impacting	public	health	are	subject	to	CORA. Moreover, Respondent	has	an	extremely high	burden to	meet	to	demonstrate that,	as governmental	custodian	of	public	information,	its	interes ts	in	shielding	the Restricted Air Quality	Records from	the	public,	outweighs	the	public’s	right	to	know	whether	there	is compliance	with	an	air	quality	regulation	regarding	a	known	dangerous	pollutant,	sulfur dioxide,	directly	affecting	the	public	health and	safety	of	the	second	largest	urban	region	of the	State	of	Colorado	with	over	one	half	million	residents.		Particularly	since	multiple independent	professional	air	quality	engineering	firms	have	submitted	air	quality	modeling reports	to CSU	and CDPHE	co nsistently	showing	exceedances	of	federal	and	state	standards of	allowable	levels	of	sulfur	dioxide	pollutant	impacts	from	the	Martin	Drake	Power	Plant, the	benefit	of	allowing	the	public	to	access	information	concerning	why	this	same government	agency is withholding	related	air	quality	information most	certainly	outweighs any	potential	risk	to	the	public	for	its	release

. The	public	has	the	right	to	any	and	all technical	data	that	a	government	run	utility	has	requested	and/or	was	provided by	its
contracted vendor regarding	air	quality	and	emissions	of	pollutants	monitored	and regulated	by	the	State	and	Federal	government.		More o ver,	ratepayers	of	the	government utility	are	those members	of	the	public	who	pay	for	such data	collection	that	directly pertains	t o the quality of	the	air	they	breathe,	and	whether	that	quality	is	deemed	within federally	mandated	levels	that	are	safe	for	their health.
To	determine	whether appropriate	action	is	being	taken,	or	whether meaningful	action
should	be	taken	to	ensure SO2	em issions are reduced	to	safe	levels	for	public	air	quality, public	access	to	relevant	government	information,	including the Restricted Air	Quality
Records ,	is	critical.		Clearly	the	public	interest	and	potential	benefit	of	information regarding	compliance	o f	a	dangerous	air	pollutant	to	a	regulatory	standard	greatly outweighs	the	government’s	interest	in	withholding	such	information	from	the	public.18 VI. CONCLUSION In	conclusion,	the Attorney

- Client Privilege	only	applies	in very limited	circumstances , whi ch are	not	met	with	regard	to Respondent ’s	attempt	to	assert	the	privilege	under	the Colorado	Open	Records	Act .		The	public	right	to	access	government	information	is	a	highly respected	right	in	Colorado	and	the	United	States,	and	can	only	be	overcome	by stat utory exemption	which	supports an	overriding	need	by	the	government	custodian	to	conceal
certain	information	because	of	the	risk	of substantial	injury	to	the	public	interest. Respondent has	failed	to	present	an	adequate	justification for	any	right	it	migh t	have	to invoke	this	privilege	with	respect	to	the Restricted Air	Quality	Records withheld	from	the
Weise	CORA. Respondent	improperly	asserts	that	the	public	records	fall	under	the	“privilege” exemption	to	CORA.		CORA	and	case	law	limited	requirements	fo r this	privilege have not been met by	Respondent .		Further,	the	Federal Clean	Air	Act	mandates	the	disclosure	of	this very	type	of	information ,	with the	very	narrow exception in	the	case	of	information containing trade	secret s

. Finally,	the	public	benefi t	to	the	information	concerning	air quality	greatly	outweighs	the	government’s	right	(if	any	exists)	to	withhold	th e	information from	the	public.		A proper	analysis	of	the Attorney

- Client Privilege	exemption	to	the Colorado	Open	Records	Act clearly shows	t hat	Petitioner’s	withholdings	of	public
documents was	improper and constitutes	an	abuse	of	discreti on,	and	therefore	the
Restricted Air	Quality	Records and	any	other	relevant	public	information	that	falls	within the	Weise	CORA	( including Task	Orders submit ted	by	CSU under	the	AECOM CSU	Air Quality	Services	C ontract , or other communications	where	the	requested	work	performed by	AECOM	was	communicated	by	CSU), must	be	released	to	the	public.

Wherefore,	the	Respondent	requests	the	following	relief: 1) Expedited review	of	this	m atter because	of an	impending	federal	decision concerning	the	matter	of	sulfur	dioxide	violations	of	air	quality	in	the	Colorado Springs	region, for which	the	withheld	information	may	be	directly	relevant ,	and because	the	issue	directly	im pacts	public	health	of	the	citizens	of	Colorado	Springs ;19 2) Conduct	either	or	both	an	in	camera	review	of	the	withheld	public	information,	and a	hearing	on	the	matter	where	both	parties	can	present	a	discussion	to	the	Court; 3) Declare	that	CSU	violated	CORA	by wrongfully	withholding	public	records	from disclosure; 4) Order	CSU	to	produce	and	disclose	to	Petitioner	the	following	documents:
All records withheld	by	Petitioner	regarding	the	Weise	CORA,	and	any	other communications	that	are	responsive	but	not	already	pr ovided	regarding	the	Weise CORA	including	updated	records that are	relevant	subsequent	to	the	date	of	its original	submission,	August	14,	2015,	and	with	no	financial	charge	to	Respondent; 5) Order	other	relief	as	the	Court	deems	proper. Respectfully	submitted	thi s	17 th day	of	December	2015.

LESLIE	WEISE, Pro	Se
17780	Caribou	Drive Monument,	Colorado	80132 Ph:	303.523.0016