Colorado Springs Utilities is attempting to dodge releasing information about the Drake Power Plant fire by instructing employees to include the term “attorney-client privilege” in all emails discussing the May 5 fire there.

Top supervisors in Utilities energy division told employees this would allow the publicly-owned utility to deny requests made under the Colorado Open Records Act, or CORA, for emails and other documents.

Click here for Colorado Springs Utilities’ response

The downtown coal plant has been shut down since the fire caused extensive damage. Three days after the fire, The Gazette requested from El Paso County all communications between Utilities and the county fire marshal. The county acknowledged the request but has not responded to it.

A source inside Utilities said employees were told by the executive staff in meeting after the fire that the media had made a sweeping CORA request and that employees should add the words “attorney-client privilege” to all emails concerning the blaze.

“The intent of this is to prevent the media from accessing communications regarding the Drake fire, restoration efforts, and other information CSU wants to keep away from the public,” a Utilities employee, who wished to remain anonymous for fear of retribution, said via email.

A Utilities spokesman on Friday acknowledged the directive to label emails, saying in an email statement, “An email was distributed from the City Attorney’s office to some Colorado Springs Utilities staff members regarding documents pertaining to the Martin Drake Power Plant post-fire assessment process. In this email, the City Attorney’s office directed that this type of correspondence be marked Privileged and Confidential and/or Attorney-Client Privilege. The City Attorney’s office was concerned about speculative emails and other correspondence containing incomplete facts being exchanged that could endanger our standing with the rating agencies and our bond underwriters.”

The Colorado Open Records Act allows the public to view documents generated by state and local government, including publicly-owned entities such as Utilities, while granting a few exemptions, including public records covered by attorney-client privilege.

“This is not just wrong, it’s sophomoric,” said Tom Kelley, an attorney for the firm of Levine Sullivan Koch & Schulz, which represents The Gazette and other media in public records issues. “First, they are wrong about the law. The attorney-client privilege only exempts legal advice between an interested group of people. Second, it’s blatantly fictitious. To try to pull this kind of thing to deny public records, frankly makes my blood boil.”

At the same time, the move could be effective in some circumstances, he said. It would allow Utilities to deny records to the media unless the media scrutinized the denials and contested them.

“To try to try to sweep all communication under that rug is plainly illegal and an evasion of CORA,” said Kelley.

Kelley said Utilities’ directive is not a proper use of attorney-client privilege exemptions.

“It seems to me the city attorney is instructing everyone that communicates with each other to say they have attorney-client privilege even though they do not. It appears by their own admission this was not discussion of a legal issue. This is an attempt to throw an attorney-client cloak over something that doesn’t involve an attorney.”

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Dan Higgins, Interim Manager of the Colorado Springs Utility Energy Supply Dept., shines a flashlight on the oil pressure and sensing equipment located beneath Unit #5 while leading the most recent media tour of the Martin Drake Power Plant on Tuesday, June 10, 2014. The melted equipment was the point of origin for the fire that shut down the power plant. (The Gazette/Jerilee Bennett)