Drafts and Public Record
Q: My city is reviewing and commenting on a Draft EIR for a large project they are undertaking. They have been getting drafts and commenting on it and then returning the comments to the consultant who presumably is editing the EIR in response to the comments. Are the Drafts of the EIR public records that I should be given access to and are the comments to the consultant public record too?
A: A government agency may argue that draft reports [and the comments made on the report], such as the type you refer to, can be withheld pursuant to the Public Records Act’s exemption for “preliminary drafts, notes, or interagency or intra-agency memoranda” (codified in Gov’t Code § 6254(a)). However, such exemption applies only to documents that are “not retained by the public agency in the ordinary course of business” and only if “the public interest in withholding those records clearly outweighs the public interest in disclosure.” As the statute explicitly provides, preliminary drafts should only be withheld if the public interest in withholding them clearly outweighs the public interest in disclosing them. If the city cites the draft exemption in response for a request for the draft EIR and for the comments, you might want to press for an articulation of what the public interest in withholding such documents is.
In addition, a government agency may argue that draft reports can be withheld pursuant to the Public Records Act’s “deliberative process privilege” (codified in Gov’t Code § 6255). The deliberative process privilege is designed to protect materials reflecting deliberative or decision-making processes. Wilson v. Superior Court, 59 Cal. Rptr. 2d 537 (1996). An agency might argue that draft consultant reports are instrumental to a city’s decision-making process and, therefore, are exempt from disclosure. Where an agency invokes the deliberative process privilege, courts have held that the key question is whether disclosure of the materials would expose the agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to do its job. Wilson, 59 Cal. Rptr. 2d 537. However, it is important to note that the deliberative process privilege is not intended to protect a purely factual report, only those reflecting a deliberative or policy-making process. Rogers v. Superior Court, 23 Cal. Rptr. 2d 412 (1993). Finally, in order to invoke the deliberate process privilege (as is the case with the exemption above) an agency must be able to justify its withholding by demonstrating that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. Govt. Code s. 6255(a).
If you have not already done so, I suggest you submit a written Public Records Act request for the records you seek. The Public Records Act requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov’t Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov’t code § 6255). If the city cites one of the above exemptions as a basis for withholding the draft EIR and the comments, as stated above, you might want to press back for an articulation of what the public interest in withholding such documents is. A sample CPRA request letter can be found on the CFAC web site at the following link: http://www.cfac.org/templates/cpraletter.html.