Opinion: Adventures in finding the flood numbers

In my last column, I provided some information that was inaccurate. Unfortunately, the real information is worse. I had said that the proposed South Boulder Creek dam along U.S. 36 and Table Mesa Drive would “protect” around 600 structures for a cost of around $90 million. 

The 1/25/24 council memo states that 600 structures are in that floodplain and that the South Boulder Creek Flood Mitigation Project will protect only 260 of them from a 100-year flood. If 260 structures are “protected,” then that leaves 340 “unprotected.”

Redoing the math, the $90,000,000 estimated cost figure I used divided by 260 structures is almost $350,000 per structure, over a third of a million dollars!

I immediately communicated this much larger number to the City Council, figuring that the shock might stir some serious rethinking. I did not receive a single reply.

I also made a request under the Colorado Open Records Act (CORA) for “the most recent detailed updated cost estimate for the project” (along with one other item). The response I got was, “We do not have documents responsive to the remaining two items.” That baffled me since I presumed that there must be something on which the council based its “emergency passage” of the $66 million bond issue.

A friend, with whom I’ve been working on this, also emailed the city, pointing out that the city staff had testified that the city “had several iterations” of the cost numbers. Then, in apparent contradiction to the previous reply of no “responsive” documents, the staff said, “The city is denying your request pursuant to C.R.S. 24-72-204(3)(a)(XIII). In compliance with C.R.S. 24-72-204(3)(a)(XIII), I am providing the attached privilege log and sworn statement. … When the privileged document is finalized, it will become available for public inspection.”

Per the city’s Affidavit attached to this refusal, the relevant document is the “draft 90% design report” done by RJH, the city’s main consultants on the dam project, and requires “extensive and in-depth City review, vetting, and revision. … Disclosure would stunt the City’s ability to have a frank and open discussion during the City’s deliberative process.” Exactly what is the city planning to do to the report that we paid RJH big bucks for? And why can’t the draft report be made public? Just label it “DRAFT.” How hard is that?

The C.R.S. 24-72-204 section’s opening lines state, “Records (are) protected under the common law governmental or ‘deliberative process’ privilege, if the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government, unless the privilege has been waived. The general assembly hereby finds and declares that in some circumstances, public disclosure of such records may cause substantial injury to the public interest.”

So, all the city is doing in its refusal is paraphrasing what the statute already says. It did not provide any specific facts or arguments as to how this material is “candid or personal,” nor why disclosure would “stifle” the city’s ability to have “honest and frank discussions,” nor what specific “substantial injury to the public interest” might happen if the draft document were made public before the city had its discussions with RJH. In my opinion, given the city’s inconsistent performance on this project to date, the public interest would be far better served if the documents were disclosed first. Then we citizens would know what the consultants said and thus know better how to provide input.

The statute also provides an efficient way to get a court ruling. It states, “If the applicant (the citizen) so requests, the custodian (the city) shall apply to the district court for an order permitting him or her to restrict disclosure. … In determining whether disclosure of the records would cause substantial injury to the public interest, the court shall weigh, based on the circumstances presented in the particular case, the public interest in honest and frank discussion within government and the beneficial effects of public scrutiny upon the quality of governmental decision-making and public confidence therein.”

I think it would be very interesting to hear from the city why it thinks that the public interest would be better served by keeping secret the consultants’ work, funded by us taxpayers, until the city staff had a chance to work it over. To me, doing this would destroy any credibility it might have had. Things are bad enough already with this project, given the staggering rise in costs, the inadequate protection provided and the failure to fully explore alternatives. It needs more sunlight, not more darkness.

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