Question
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 prepared to 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.”
Answer
The Public Records Act, borrowing the definition from the Brown Act, applies only to nonprofit organizations that either (1) were created by an official act of a legislative body or (2) shares a member with an agency’s governing body and receives funds from that same agency. See Govt. Code sections 6252(b) and 54952(c), (d). Depending on whether the Firefighters’ Association meets this test, it may or may not be subject to the Public Records Act.
In general, the Public Records Act only requires that public agencies disclose records in their possession, as opposed to compiling information to answer a specific question. However, if the information related to the dinner attendees was maintained in an electronic database, and the association is indeed subject to the Public Records Act, then it may be that under Gov’t Code section 6253.9, the association would be required to compile a list of the requested information from whatever records it maintains in its electronic databases.
To the extent that the district itself would have any records (i.e., emails) related to the event and its attendees, it might be helpful to make a request that is broad enough to cover any and all of these individual records so that you can compile the information yourself. In other words, rather than asking for a list of attendees, you might want to consider asking for “any records related to dinner attendants and participants, including individual responses from invitees and preliminary rosters of potential attendants.”
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.