DISTRICT COURT, BOULDER COUNTY,

COLORADO
1777 6th Street
Boulder, Colorado 80302
Plaintiff:
PATRICK MURPHY, a Colorado citizen and resident of
COURT USE ONLY
Boulder,
v.

Case No.:

Defendants:
CITY OF BOULDER, and
HEATHER BAILEY in her official capacity as
Executive Director of Energy Strategy and Electric
Utility Development.

Division/Courtroom:

Attorney for Plaintiff:

Jason M. Lynch, #39130
R EILLY P OZNER LLP
1900 Sixteenth Street, Suite 1700
Denver, Colorado 80202
Phone: 303-893-6100
Fax: 303-893-6110
Email: jlynch@rplaw.com
COMPLAINT
(With Application for Show Cause Order)
Plaintiff, Patrick Murphy, for his Complaint in this civil action, states and alleges
as follows:
Introduction
1.
In this civil action under the Colorado Open Records Act (CORA),
C.R.S. 24-72-201, et seq., the plaintiff seeks access to the City of Boulders twenty-year
cash flow analysis (the Cash Flow Model) that the City described in a September 11,
2014, public letter addressing the municipalization of electric power utility service in
Boulder and that the City has relied upon to take action implementing municipalization.
The plaintiff also seeks, under C.R.C.P. 57 and the Colorado Declaratory Judgment Act,
C.R.S. 13-51-105, a declaration of the rights and duties of the parties with respect to
future access to the Cash Flow Model as Boulder changes or updates it.
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2.
As more fully set forth below, these public records have been withheld by
the City of Boulder and Heather Bailey on the grounds that the cash flow analysis and
related modeling are work product under C.R.S. 24-72-202(6.5). The defendants
assertion of this ground for denial of access to the records is not supported in fact or law,
and as a result, the documents have been wrongfully withheld from public disclosure. The
records should be ordered released, and reasonable attorneys fees awarded to Plaintiff
pursuant to C.R.S. 24-72-204(5) for having to bring this action.
Jurisdiction and Parties
3.
This Court has jurisdiction over the claims herein under CORA, C.R.S.
24-72-204(5), and under Article VI, Section 9(1) of the Colorado Constitution.
4.
Plaintiff Patrick Murphy is a Colorado citizen and resident of Boulder
seeking access to the public records that are the subject of this action.
5.
Plaintiff is a person as that term is defined by CORA, C.R.S. 24-72202(3), and as such, he has standing to bring a claim for access to public records under
CORA, and for an award of his reasonable attorneys fees thereunder.
6.
Defendant City of Boulder is sued as custodian of the public records that
are the subject of this action.
7.
Defendant Heather Bailey is sued in her official capacity as Executive
Director of Energy Strategy and Electric Utility Development and as custodian of the
public records that are the subject of this action.
Boulders Program to Municipalize Electric Utility Service
8.
On November 1, 2011, Boulder voters approved adding Article XIII, Light
and Power Utility, to the Boulder Home Rule Charter.
9.
Section 178(a) of Article XIII provides that Boulder may establish a public
electric power utility only if it can demonstrate, with verification by a third-party
independent expert, that (1) the utility can acquire the electrical distribution system in
Boulder and charge rates that do not exceed those rates charged by Xcel Energy at the
time of acquisition, (2) that such rates will produce revenues sufficient to pay for
operating expenses and debt payments, plus an amount equal to twenty-five percent (25%)
of the debt payments, (3) that the utility will operate with reliability comparable to
Xcel Energy, and (4) that the utility will have a plan for reduced greenhouse gas
emissions and other pollutants and increased renewable energy . . . .
10.
With respect to the financial aspects of a public utility, Section 178(a) of
Article XIII thus imposes two preconditions on the Citys formation of a public electric
power utility. Boulder must demonstrate that the rates charged by a public utility will not

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exceed Xcels rates and that it will generate sufficient cash flows to pay for operations,
debt service, and a specified excess amount above debt service.
11.
On August 20, 2013, the Boulder City Council passed Ordinance No. 7917,
which determined that the financial and other preconditions contained in Section 178(a)
for the creation of a public electric power utility had been met. Specifically, the City
Council determined that a public utility can acquire the electrical distribution system in
Boulder and charge rates that do not exceed those charged by Xcel at the time of
acquisition. The City Council also determined that the anticipated rates to be charged by
a public utility will produce revenues sufficient to pay for operating expenses, debt
payments, and an amount equal to 25% of debt payments.
12.
In concluding that the preconditions of Charter Section 178(a) had been
met, the City Council relied upon the results produced by financial and other models
prepared by city employees. Those materials included the Cash Flow Model.
13.
Boulder has touted the results of its financial modeling, including the Cash
Flow Model, in public statements about its municipalization program. For example, the
City has said that [t]he modeling that has been completed for the municipalization
exploration project provides a complete financial picture of the money that a municipal
utility would need to operate. City of Boulder, Understanding the Money (Aug. 16, 2013). 1
The City also publicized a report by a consultant which says that [t]his model has worked
well with the decision process. City of Boulder, Review of Updated Model for New Electric
Utility at 10 (October 15, 2013). 2
14.
Consistent with its determination that the preconditions for creating a
public electric power utility have met, Boulder has taken further steps to execute its
municipalization plan. As Boulder stated in its 2015 budget proposals, 2014 marked a
year of transition from exploration to implementation of its plan to create a municipal
electric power utility.
15.
On August 20, 2013, the same day the City Council determined that
preconditions in Section 178(a) of the Charter had been met, it passed Ordinance No.
7918, which authorized the City to condemn assets owned by Xcel Energy for use by the
Citys utility.
16.
On May 6, 2014, the Boulder City Council passed Ordinance No. 7969,
which formed an electric utility.

Available at https://www-static.bouldercolorado.gov/docs/Assumptions_Financial_FINAL-1201308201014.pdf (last visited Dec. 17, 2014).

2
Available at https://www-static.bouldercolorado.gov/docs/PowerServices_revised_modeling_11-113-1-201311011646.pdf (last visited Dec. 17, 2014).

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17.
On July 17, 2014, Boulder filed an action in Boulder County District Court
(Case No. 2014CV30890) to condemn the electric utility assets it requires for its public
utility.
18.
Boulder is devoting increasing amounts of public tax dollars to implement
municipalization. In 2014, Boulder approved expenditure of $2,312,000 on its
municipalization plan. In 2015, the City plans to spend at least $6,943,235 in the City
budget to implement its municipalization plan.
Plaintiff s Request for, and the Defendants Denial of, Access to Public Records
19.
On October 30, 2014, Plaintiff delivered a written request to the
Defendants, through the Citys official email address, energyfuture@bouldercolorado.gov,
for access under the CORA to the Cash Flow Model. A true and correct copy of this
request by the Plaintiff is attached hereto as Exhibit A.
20.
In the request, Plaintiff identified the September 11, 2014 letter from
Defendant Bailey which states that the citys model has proven robust and is producing
results consistent with our projections. Bailey goes on to say, I am also pleased to let
you know that our modeling included a detailed cash flow analysis for 20 years. She
called the Cash Flow Model an essential part of understanding the financial feasibility of
proceeding with this initiative.
21.
Plaintiff s request asked Defendants to provide him with the detailed cash
flow analysis for 20 years mentioned in Baileys letter.
22.
Thereafter Defendants, through an email from Senior Assistant City
Attorney, Kathy Haddock, on November 5, 2014, refused to provide the cash flow analysis
because they claimed it is work product under C.R.S. 24-72-202(6.5). A true and
correct copy of this email is attached hereto as Exhibit B.
23.
On December 19, 2014, the Plaintiff notified Defendant Bailey of his intent
to file this Complaint and Application for an Order to Show Cause. A true and correct
copy of that letter is attached hereto as Exhibit C. This letter provided the required
statutory notice to Defendants pursuant to C.R.S. 24-72-204(5), that absent production
of the requested records, it intended to seek judicial relief in this Court.
24.
Defendants did not respond to the December 22 letter and continue to
wrongfully refuse to provide access to the requested public records.
Applicable Statutory Provisions
25.
Under CORA, any person may request access to inspect and obtain a copy
of any public record. See C.R.S. 24-72-203(1)(a).

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26.
Under CORA, a public record is defined as any writing made, maintained,
or kept by . . . any . . . political subdivision of the state . . . for use in the exercise of
functions required or authorized by law or administrative rule. See C.R.S. 24-72202(6)(a)(I). The cash flow analysis sought by Plaintiff is a public record under CORA.
27.
Under CORA, if a document constitutes a public record, the custodian
may deny access only if there is a specific exception that requires or permits the
withholding of that record. See C.R.S. 24-72-203(1)(a).
28.
Under CORA, all exceptions to the statutory mandate of public access must
be construed narrowly. See Sargent Sch. Dist. No. RE-33J v. Western Servs. Inc., 751 P.2d
56, 60 (Colo. 1988).
29.
Defendants assert that the Cash Flow Model is not a public record because
it falls under the work product exception.
30.
Under CORA, [p]ublic records does not include . . . [w]ork product
prepared for elected officials. C.R.S. 24-72-202(6)(b). Work product means and
includes all . . . advisory or deliberative materials assembled for the benefit of elected
officials, which materials express an opinion or are deliberative in nature and are
communicated for the purpose of assisting such elected officials in reaching a decision
within the scope of their authority. C.R.S. 24-72-202(6.5).
31.
The Cash Flow Model that Plaintiff seeks is not work product because it
does not contain advisory or deliberative content.
32.
CORA incorporates common law concepts of privilege and waiver. See Ritter
v. Jones, 207 P.3d 954, 960 (Colo. App. 2009).
33.
Defendants have repeatedly publicized the results of the Cash Flow Model
and other modeling as supporting its determination that the preconditions for
municipalization have been met and that municipalization is a sound policy for the City to
pursue.
34.
If the models constitute protected work product under CORA, Defendants
have waived that protection by putting the Cash Flow Model and its outputs at issue in its
decisions to pursue municipalization and in its public defense of its policies.
35.
Under CORA, the Court must schedule the hearing on an Order to Show
Cause at the earliest time practical. Id.
36.
Under CORA, following a Show Cause Hearing, if the Court finds that the
requested public records should be made available for public inspection, the Court must
award the applicant his or her reasonable attorneys fees in connection with the effort to
obtain access to the public record. See id.

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FIRST CLAIM FOR RELIEF

Request for Access to Public Records under CORA
(C.R.S. 24-72-204(5))
37.
Plaintiff incorporates the allegations of previous paragraphs of this
Complaint as though fully set forth here.
38.
The documents requested by Plaintiff were made, maintained, or kept by
the City for use in the exercise of functions authorized by law, and are therefore public
records. See C.R.S. 24-72-202(6)(a)(I).
39.
The Defendants are unable to establish that the Cash Flow Model requested
by Plaintiff is exempt from disclosure as work product, pursuant to C.R.S. 24-72202(6.5) because it does not contain advisory or deliberative communications.
40.
Because Defendants the City of Boulder and Ms. Bailey have denied a valid
request under CORA for inspection of requested public records, Plaintiff is entitled to an
order from the Court directing Defendants the City of Boulder and Ms. Bailey to show
cause at the earliest practicable time why it should not provide access to the requested
public records. See C.R.S. 24-72-204(5).
41.
Plaintiff gave Defendants the City of Boulder and Ms. Bailey more than
three days notice, pursuant to C.R.S. 24-72-204(5), prior to filing this Complaint.
42.
Plaintiff is entitled to an order directing Defendants to provide Plaintiff with
access to the Cash Flow Model.
43.
Plaintiff is entitled to an award of its reasonable attorneys fees and costs in
enforcing its right of public access to these public records, pursuant to C.R.S. 24-72204(5).
SECOND CLAIM FOR RELIEF
Request for Declaratory Judgment Under
C.R.C.P. 57 and C.R.S. 13-51-105.
44.
Plaintiff incorporates the allegations of previous paragraphs of this
Complaint as though fully set forth here.
45.
The Plaintiff is entitled to a declaratory judgment, pursuant to C.R.C.P. 57
and C.R.S. 13-51-105, determining that the Plaintiff and the public is entitled in the
future to inspect and/or copy, upon proper request, pursuant to CORA, the Cash Flow
Model that the City of Boulder is relying upon to make decisions concerning
municipalization.

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Application For Order to Show Cause

A.
Pursuant to C.R.S. 24-72-204(5), Plaintiff is entitled toand does hereby
apply foran Order to Show Cause, directing that Defendants the City of Boulder and
Ms. Bailey show cause why the requested public records should not be disclosed. As
required by the CORA, the Court should set the date of the show cause hearing at the
earliest time practical.
B.

A proposed Order to this effect is attached for the Courts convenience.

Requested Relief

WHEREFORE, pursuant to C.R.S. 24-72-204(5) and 13-15-105, Plaintiff prays

that:
i.
the Court forthwith enter an Order directing Defendants the City of
Boulder and Ms. Bailey to show cause why they should not allow inspection of the
requested records as described in this Complaint and Application for Order to Show
Cause;
ii.
the Court conduct a hearing pursuant to such Order at the earliest
practical time, at which time the Court may make the Order to Show cause absolute;
iii.
the Court enter an order directing Defendants to provide access to or copies
of the Cash Flow Model;
iv.
the Court enter a declaratory judgment finding that the requested public
records are subject to disclosure and not exempt under CORA or any other law, and they
are subject to public access pursuant to the Plaintiff s valid request under the CORA;
v.
the Court award Plaintiff costs and reasonable attorneys fees associated
with the preparation, initiation, and maintenance of this action, as mandated by C.R.S.
24-72-204(5); and
vi.
and just.

the Court award such order and further relief as the Court deems proper

Respectfully submitted this 30th day of December, 2014.

/s/Jason M. Lynch
Jason M. Lynch
Reilly Pozner LLP
1900 16th Street, Suite 1700
Denver, CO 80202
Attorney for Plaintiff
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Plaintiff s Address:
1554 North Street
Boulder, Colorado 80304

Pursuant to C.R.C.P. 121, Section 1-26, a printed copy of this document with original
signatures will be maintained by Reilly Pozner LLP and made available for inspection
upon request.

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