A federal judge in Denver has weighed in on the city’s decision to redact memos prepared by Denver’s law enforcement watchdog agency that attorneys say contain damaging information about how police handled 2020’s racial justice protests.

The attorneys have sought to introduce the memos in a lawsuit on behalf of a group of demonstrators.

In an order issued Monday, Judge R. Brooke Jackson upheld some of the redactions based on Denver’s claims that they contain privileged information, but disagreed with other redactions, saying some are not protected.

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Jackson’s order does not include the contents of the memos, but nevertheless shows the sentence-by-sentence process he appears to have undertaken in his review based on his decisions about redactions in specific phrases and sentences. The order reveals that those interviewed by the Office of the Independent Monitor include Deputy Police Chief Barb Archer, Office of Emergency Management Executive Director Matthew Mueller and Cmdr. Patrick Phelan.

Jackson inferred that material from Phelan’s interviews could be “particularly significant,” so he chose to review the memos of both interviews Phelan gave.

In the lawsuit filed in 2020 by a handful of protesters and Black Lives Matter 5280 — though the latter has since pulled out as a plaintiff — the protesters have said Denver and Aurora are responsible for police’s alleged unconstitutional uses of force to control and suppress demonstrations because both cities failed to train and supervise their officers on use of force. The lawsuit also says Denver failed to hold joint training for Aurora officers who helped with the city’s response to the protests to make sure they complied with Denver’s policies.

Among the people suing is Elisabeth Epps, a state legislative candidate who founded the Colorado Freedom Fund.

A status report filed Friday says mediation in the case has been unsuccessful with the exception of a tentative agreement reached with one plaintiff.

The two sides are in a dispute over memos of interviews with officers prepared by former independent monitor Nick Mitchell and the Office of the Independent Monitor’s staff during an investigation into how Denver police handled protests sparked by the murder of George Floyd in Minneapolis. The report, released at the end of 2020, found police misused less-lethal force tactics and at times acted anonymously without body-worn cameras.

Denver seeks to stop former police monitor from testifying in lawsuit over racial justice protests

The city has claimed it made redactions from the memos based on deliberative process privilege, which protects information showing how a government agency came to a decision. According to Jackson’s order, the privilege covers “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.”

Denver has also claimed law enforcement privilege for some of the redactions, which according to Jackson’s order covers the public disclosure of investigatory files that could cause harm to law enforcement efforts. Among the types of information covered are details about law enforcement techniques and procedures or information that could put witnesses and officers in danger.

In November, Jackson agreed to review unredacted versions of the memos privately to determine whether the city’s redactions were appropriate.

Report critical of Denver police response during George Floyd protests

He based his order on six memos he randomly chose to review initially, given that the process of reviewing the redactions has been time consuming. Fifteen memos remain, and he asked the parties to identify which of them they consider most important so he can review them first when he returns to perusing the memos.

“These privileges are not easy to apply. With respect to the deliberative process privilege, I have found the distinction between predecisional and postdecisional [information] difficult to make, particularly so in light of the fact that these interviews took place after the protests,” Jackson wrote.

Notably, Jackson said in his ruling he believes the city made a good-faith effort to correctly apply the standards for privileged information to the memos when modifying the initial redactions in 2021. He did not see any indication that city officials made decisions about contents to redact based on whether they believed the information would damage or help their case.

Attorneys for the protesters said in previous court filings that they believe Denver has used a legal process to hide damaging information about police conduct during the demonstrations that the city doesn’t want revealed, including evidence that the department cut back on field force training for officers and criticism by command post leaders about officers’ behavior on the ground.

“I find that defendants’ re-redacted versions reflect a good faith effort to apply the standards to these memos, and that there is no indication that their redaction decisions were affected by whether the material would be helpful or harmful to their litigation position,” Jackson wrote.