What is a Draft? How does that affect Public Records Requests?
Q: An agenda report references a third party report. An excerpt from the agenda report: “The city engaged the services of Company to provide a cost benefit analysis of the proposed annexation. The preliminary results show that at project build out…a positive impact… of $1 million annually. This financial analysis will be refined throughout the process….” I requested to see the document, but the city said it is a “draft” and is not eligible for disclosure. It seems to me since they received the third party document, and used it to make an important decision, that it should be available to the public. What do you think?
A: To withhold the report as a “draft,” the city must meet a 3-part test set out by the California Court of Appeals:
(1) it must show the report is “predecisional” — i.e., it was preparedto aid the city in making some other decision;
(2) it must show the report is not something that the city would normally keep on file; and
(3) it must show the report is “recommendatory” in nature. Even if the report is predecisional and not something normally kept on file, any factual sections of the report, and perhaps its observations and analysis, would typically not be precluded from disclosure under this exemption.
Citizens for a Better Environment v. Department of Food Agriculture, 171 Cal. App. 3d 704 (1985).
Note that the case also said that even if documents are predecisional and would normally be discarded, if they “have not in fact been discarded as customary they must be disclosed.”