Corporations Are “Citizens” Entitled to COML Attorney Fees; Fact-Only Disclosures Do Not Waive Attorney-Client Privilege

Introduction

In The Sentinel Colorado v. Rodriguez, 2025 CO 58, the Colorado Supreme Court resolved two recurring open-government questions under the Colorado Open Meetings Law (“COML”), § 24-6-402, C.R.S. (2025): (1) whether a corporate-owned newspaper qualifies as a “citizen” eligible to recover attorney fees under § 24-6-402(9)(b) after proving a COML violation, and (2) whether a public body waives the attorney-client privilege for an executive-session recording by later releasing a public letter that describes the fact that a stipulated agreement was discussed and recounts background facts and outcomes.

The dispute arose from an Aurora City Council executive session convened amid censure proceedings against a council member. The Sentinel sought the executive-session recording; the City Clerk (as records custodian) denied access, invoking COML exemptions and attorney-client privilege. The district court initially found a COML notice violation and ordered release but, on reconsideration, withheld the recording. The court of appeals largely sided with The Sentinel on COML violations and privilege waiver, but held The Sentinel could not recover fees because it was not a “citizen.” The Supreme Court reversed on the fee and waiver issues and remanded.

Summary of the Opinion

  • Fee-shifting holding: The Court held that “citizen” in § 24-6-402(9)(b) includes corporations, because COML’s remedial structure uses “person” (standing) and “citizen” (injunctions/fees) interchangeably as practical references to the same class of COML plaintiffs. Thus, The Sentinel may seek attorney fees if it is ultimately the prevailing party.
  • Privilege holding: The Court held that a public letter that recounts non-privileged facts—charges, procedure, appointment of special counsel, the fact the Council directed counsel to enter a stipulation, and the stipulation’s terms—does not waive attorney-client privilege for the executive-session communications, because it does not disclose the substance of privileged attorney-client communications.

Analysis

Precedents Cited

1) Statutory interpretation framework

The Court relied on a well-established interpretive toolkit:

  • McCoy v. People, 2019 CO 44, ¶ 37, 442 P.3d 379, 389: de novo review of statutory interpretation; primary aim is legislative intent.
  • In re Marriage of Ikeler, 161 P.3d 663, 667 (Colo. 2007): statutes read as a whole to give “consistent, harmonious, and sensible effect” to all parts.
  • Huber v. Kenna, 205 P.3d 1158, 1162 (Colo. 2009): consider interactions between subparts.
  • People in Int. of T.B., 2019 CO 53, ¶ 23, 445 P.3d 1049, 1054: provisions construed consistently with overall statutory design; context matters.
  • Frazier v. People, 90 P.3d 807, 811 (Colo. 2004): avoid illogical or absurd results.
  • State Farm Mut. Auto. Ins. Co. v. Fisher, 2018 CO 39, ¶ 12, 418 P.3d 501, 504: if unambiguous, apply as written; if ambiguous, interpretive rules may apply.
  • Elder v. Williams, 2020 CO 88, ¶ 18, 477 P.3d 694, 698: ambiguity exists when susceptible of multiple reasonable interpretations; then courts may consider consequences and surrounding circumstances.

In the open-government context specifically, the Court emphasized the interpretive tilt favoring access:

  • Cole v. State, 673 P.2d 345, 347 (Colo. 1983): open meetings statutes are interpreted broadly.
  • Bagby v. Sch. Dist. No. 1, 528 P.2d 1299, 1302 (Colo. 1974): interpreted “in the manner most favorable to the public.”

These cases served not as outcome-determinative “COML fee” precedents but as the doctrinal scaffolding that allowed the Court to treat “citizen” as a contextual term within a remedial scheme rather than as a dictionary-bound label.

2) Using definitions across related statutory provisions

To support reading “person” broadly and harmonizing “person” with “citizen,” the Court invoked precedent about statutory definitions and consistency:

  • Castillo v. People, 2018 CO 62, ¶ 42, 421 P.3d 1141, 1148: statutory definitions used elsewhere in the same statute are authoritative evidence of legislative intent.
  • Montezuma Valley Irrigation Co. v. Bd. of Cnty. Comm'rs, 2020 COA 161, ¶ 25, 486 P.3d 428, 433: presumption that terms are used similarly within the same title.
  • Bertrand v. Bd. of Cnty. Comm'rs, 872 P.2d 223, 228 (Colo. 1994): cautions against interpreting one statute by reference to an unrelated statute.

These authorities helped the majority justify looking to § 24-6-301(4) (within the broader Colorado Sunshine Law) for a definition of “person” and then treating COML’s “citizen” language as functionally coextensive with that “person”-with-standing class—without drifting into wholly unrelated statutory regimes.

3) Practice under COML and corporate plaintiffs

The Court noted that Colorado appellate practice has long assumed newspapers and other entities can bring COML actions, citing:

  • Prairie Mountain Publ'g Co. v. Regents of Univ. of Colo., 2021 COA 26, ¶ 1, 491 P.3d 472, 474
  • Ark. Valley Publ'g Co. v. Lake Cnty. Bd. of Cnty. Comm'rs, 2015 COA 100, ¶ 1, 369 P.3d 725, 725
  • Wisdom Works Counseling Servs., P.C. v. Colo. Dep't of Corr., 2015 COA 118, ¶ 3, 360 P.3d 262, 264
  • Zubeck v. El Paso Cnty. Ret. Plan, 961 P.2d 597, 598 (Colo. App. 1998)

While none squarely decided the “corporation as citizen for fee-shifting” question, the Court treated this line of cases as reinforcing that COML enforcement has not been limited to natural persons and that an interpretation excluding corporate plaintiffs from remedies would destabilize settled enforcement expectations.

4) “Citizen” as applied to corporations in other legal contexts

The Court highlighted that legal usage sometimes treats corporations as “citizens,” citing:

  • Nelson v. Encompass PAHS Rehab. Hosp., LLC, 2023 CO 1, ¶ 20, 522 P.3d 707, 712

The citation was not used to import diversity-jurisdiction doctrine into COML, but to rebut the premise that “citizen” can never linguistically include business entities, supporting the majority’s broader contextual reading.

5) Legislative history methodology

The Court used Colo. Oil & Gas Conservation Comm'n v. Martinez, 2019 CO 3, ¶ 30 n.2, 433 P.3d 22, 29 n.2, to distinguish “statutory history” from “legislative history,” then relied on the 1991 fee-shifting amendment context and a hearing statement (cited via People v. Rockwell, 125 P.3d 410, 419 (Colo. 2005)) to support a deterrence-and-access-to-courts purpose where “the press” often leads.

6) Attorney-client privilege and waiver doctrine

The privilege analysis was anchored in Colorado’s modern privilege cases:

  • Jordan v. Terumo BCT, Inc., 2024 CO 38, ¶ 29, 550 P.3d 628, 634 (quoting Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000)): privilege protects “matters communicated by or to the client” for legal advice.
  • Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000): privilege covers communications, not “underlying and otherwise unprivileged facts.”
  • People v. Trujillo, 144 P.3d 539, 543–45 (Colo. 2006): waiver requires disclosure of privileged communications to a third party; disclosing non-privileged facts does not waive.
  • Wesp v. Everson, 33 P.3d 191, 198 (Colo. 2001): burden to establish waiver/exception lies with party seeking to overcome privilege (as applied via Trujillo).

The Court also engaged directly with the COML-notice case:

  • Guy v. Whitsitt, 2020 COA 93, 469 P.3d 546, especially ¶¶ 21, 33: used to clarify that notice can include factual subject descriptions without waiving privilege, and that entitlement to records for improperly noticed matters does not equate to compelled disclosure of privileged attorney-client communications.

The opinion quoted Roberts v. Legacy Meridian Park Hosp., Inc., 97 F. Supp. 3d 1245, 1253 (D. Or. 2015), via Guy, for the proposition that waiver must be of confidential portions of privileged communications; facts such as “the fact of the communication, the identity of the attorney, the subject discussed, and details of the meetings” are not protected by privilege. This distinction became central to rejecting waiver based on the publicly released counsel letter.

7) The dissent’s interpretive authorities

Chief Justice Márquez’s dissent—though not controlling—frames future statutory-interpretation and legislative-response debates by citing:

  • Colo. Med. Bd. v. Off. of Admin. Cts., 2014 CO 51, ¶ 19, 333 P.3d 70, 74 (different terms signal different meanings)
  • Town of Minturn v. Tucker, 2013 CO 3, ¶ 27, 293 P.3d 581, 590 (plain meaning first)
  • Dep't of Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d 1012, 1016 (apply clear language as written)
  • Dep't of Transp. v. Stapleton, 97 P.3d 938, 943 (Colo. 2004) (legislature doesn’t use words idly)
  • Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1191 (Colo. 2010) (absurdity doctrine; quoting Crooks v. Harrelson, 282 U.S. 55, 60 (1930))
  • Miller v. Amos, 2024 CO 11, ¶ 24, 543 P.3d 393, 399; Plemmons v. People, 2022 CO 45, ¶¶ 25–26, 517 P.3d 1210, 1217–18; People v. Guenther, 740 P.2d 971, 975 (Colo. 1987) (dictionary use)

The dissent’s core point is structural: by using “person” in § 24-6-402(9)(a) and “citizen” in § 24-6-402(9)(b), the legislature signaled a deliberate distinction, and neither term’s plain meaning includes corporations. The dissent would go further and hold The Sentinel lacked standing under (9)(a).

Legal Reasoning

1) “Citizen” in § 24-6-402(9)(b) includes corporations

The majority’s reasoning proceeds in three moves:

  1. Scheme coherence: Section 24-6-402(9)(a) grants standing to “[a]ny person” denied COML rights, while (9)(b) authorizes injunctions upon application by “any citizen” and mandates fees to “the citizen prevailing.” Reading “citizen” narrowly to exclude corporate plaintiffs would create a mismatched enforcement scheme where an entity could have standing yet be unable to obtain injunctions/fees—an “illogical” and “absurd” result in the majority’s view.
  2. Context over isolated dictionary meaning: The court of appeals relied on a single Merriam-Webster definition. The Supreme Court held that even “plain meaning” must be assessed in statutory context (People in Int. of T.B.) and in harmony with the statute as a whole (In re Marriage of Ikeler).
  3. Purpose and history: The Court treated COML as a broadly construed open-government statute (Cole v. State; Bagby v. Sch. Dist. No. 1). It recounted statutory history: “citizen” appeared in the original injunction provision (1973), and in 1991 the fee-shifting language was added to “open up the doors to the courthouse” and deter violations—where “quite often” it is “the press” that leads. The 2014 addition of “person” for standing did not, in the majority’s view, signal an intent to narrow “citizen.”

The holding is therefore explicitly remedial: corporations (including media organizations like The Sentinel) qualify as “citizens” for COML fee-shifting, provided they prevail. The Court also clarified that the same conclusion supports appellate fees under C.A.R. 39.1, contingent on prevailing-party status.

2) No waiver of attorney-client privilege by fact-only public letter

The privilege analysis hews closely to Colorado waiver doctrine:

  1. Define what privilege protects: Privilege protects communications for legal advice (Jordan v. Terumo BCT, Inc.; Gordon v. Boyles), not underlying facts.
  2. Define waiver: Waiver arises from disclosure of privileged communications to a third party (People v. Trujillo); disclosing non-privileged facts does not waive. The burden to prove waiver is on the party seeking to overcome privilege (Wesp v. Everson via Trujillo).
  3. Apply to the letter: The released letter recounted charges, procedural steps, appointment of counsel, the fact the Council directed entry into a stipulation, and the stipulation’s terms. It did not “detail what advice” counsel gave—i.e., it did not reveal privileged communications. Thus, there was no waiver.

The Court then distinguished The Sentinel’s reliance on Guy v. Whitsitt: Guy addressed insufficient notice and held that certain factual information could have been disclosed without waiving privilege, but it did not stand for the proposition that an improperly noticed executive session strips privilege from attorney-client communications. In fact, the quoted portion of Guy (quoting Roberts v. Legacy Meridian Park Hosp., Inc.) supports the majority’s conclusion that facts about meetings and subjects can be public without waiving confidential legal communications.

Impact

1) COML enforcement incentives and the “private attorney general” effect

By holding that corporations qualify as “citizens” eligible for fees, the Court strengthens COML’s deterrent design: plaintiffs who bear litigation costs to vindicate public access can recover fees if they prevail. Media entities are frequent COML litigants; the holding reduces the risk that enforcement depends solely on individuals with limited resources. Expect increased viability of suits seeking injunctions, disclosure of non-privileged portions of executive-session recordings, and compliance-driven relief.

2) Clarified safe harbor for public bodies: outcome disclosure vs. advice disclosure

The privilege holding provides operational guidance: public bodies can disclose the existence of an executive-session discussion, describe general subject matter, and publish outcomes (including stipulation terms) without automatically waiving privilege—so long as they do not reveal confidential attorney-client communications (legal advice, strategy, counsel’s evaluation). This may encourage more transparent public reporting of outcomes while preserving the protected space for candid legal consultation.

3) Litigation positioning: waiver arguments will turn on “communication content,” not “topic overlap”

The Court’s approach rejects “topic-based” waiver (i.e., “you spoke about X publicly, so everything about X in the executive session is waived”) and reinforces “content-based” waiver (i.e., whether the disclosure reveals privileged communications). Future waiver disputes under COML executive-session recordings will likely pivot on careful parsing of what was said, what was later disclosed, and whether the disclosure reveals counsel’s advice.

4) Legislative response and dissent-driven fault line

The dissent signals a plausible legislative counter-move: if the General Assembly disagrees, it can expressly define “citizen” (and/or “person”) in COML to include or exclude entities. Until then, the majority’s harmonizing approach governs, but litigants should expect the dissent’s “plain meaning plus intentional word-choice” theory to reappear in future statutory disputes, especially when a statute mixes “person” and “citizen.”

Complex Concepts Simplified

COML (Colorado Open Meetings Law)
A statute requiring meetings of local public bodies (when discussing public business or taking formal action) to be open to the public, with limited exceptions for closed “executive sessions.”
Executive session
A closed portion of a meeting permitted only for specific reasons listed in § 24-6-402(4) (e.g., receiving legal advice on specific legal questions under § 24-6-402(4)(b)). The body must provide as much topic detail as possible without defeating the purpose, and it cannot take “formal action” in executive session.
Standing (COML § 24-6-402(9)(a))
The legal ability to sue. COML grants standing to “[a]ny person” denied or threatened with denial of COML rights.
Fee shifting (COML § 24-6-402(9)(b))
If a court finds a COML violation, it “shall award” the prevailing “citizen” costs and reasonable attorney fees. This reduces the financial barrier to enforcing public-access rights.
Attorney-client privilege
A rule that protects confidential communications between a lawyer and client made for the purpose of obtaining or providing legal advice. It does not protect underlying facts merely because they were discussed with counsel.
Waiver
Losing privilege protection by disclosing the privileged communication to a third party. Disclosing non-privileged facts—even if related to the same subject—does not necessarily waive.
In camera review
A judge privately reviews materials (like an executive-session recording) to determine what is privileged or what must be disclosed.
Prevailing party
The party that wins in a way that materially changes the legal relationship—here, it determines whether The Sentinel ultimately receives fees under COML and C.A.R. 39.1.

Conclusion

The Sentinel Colorado v. Rodriguez establishes two consequential rules for Colorado open-government practice. First, it confirms that corporations—including media organizations—are “citizens” under § 24-6-402(9)(b) and may recover attorney fees when they prevail in COML litigation, reinforcing COML’s deterrent, access-promoting design. Second, it draws a bright and practical privilege line: a public body does not waive attorney-client privilege for executive-session communications by later releasing a public letter that reports non-privileged facts and outcomes without revealing counsel’s confidential legal advice. Together, these holdings both strengthen COML enforcement and clarify how public bodies can be transparent about outcomes while preserving protected legal consultations.