Q: I have made a request for a report commissioned by the city to evaluate the police department. My request was denied on the grounds that the report is in draft form. A similar report on the fire department was released as a “draft final report.” That report has since been removed from public access “for further analysis.” The report on the PD has been read by the police chief, city manager’s office and other members of city staff. Do I have rights to access this draft report?
A: The PRA exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Govt. Code Section 6454(a).
Although some government personnel mistakenly believe that any “draft” document is automatically subject to this exemption, reading the text of the statute itself indicates that the exemption only applies if:
(1) the document is a preliminary draft, note, or memorandum;
(2) the agency establishes that the plan is not retained in the ordinary course of business; and (3) the public interest in withholding the plan clearly outweighs the public interest in disclosure. See Citizens for a Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 712 (1985) (“The burden of proof and of persuasion of the existence of each condition is the Department’s.”).
This is generally a fairly high threshold to meet, and it sounds like the city hasn’t tried to establish either of the second two elements.
It may make sense to follow up with the city, pointing out that draft documents are only exempt from disclosure if the agency holding them meets both of the requirements set forth in Government Code section 6454(a). You can find additional information about using the PRA to obtain records at the FAC web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.
Bryan Cave, LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.