Question
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?
Answer
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.”
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.