California Public Records Act:
Exemption for Preliminary Drafts and Memoranda

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Q: What is the CPRA exemption for preliminary drafts and memoranda?

Q: Does the exemption mean that drafts and memos are automatically exempt from disclosure?

Q: Is the CPRA draft/memo exemption broad or narrow?

Q: Is the possibility that a draft may be revised before being submitted for formal action sufficient justification for a preliminary draft exemption?

Q: Is a preliminary draft or internal memo exempt in any event under the broader, judicially adopted "deliberative process" privilege?

 

 

 

 

Q: What is the CPRA exemption for preliminary drafts and memoranda?

A: The exemption is found in Government Code Section 6254 (a). It states:

Section 6254. Except as provided in Section 6254.7, nothing in this chapter shall be construed to require disclosure of records that are . . . : (a) Preliminary drafts, notes, or interagency or intra-agency memoranda which are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.

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Q: Does the exemption mean that drafts and memos are automatically exempt from disclosure?

A: No. Public agencies sometimes take the position that records are not available under the Act because they are "drafts" or "working papers" or "internal" documents - as if the fact that they have not been formally released, published, adopted or presented in a public forum is sufficient justification in itself for withholding them. The qualified language in Section 6254 (a), however, suggests that no draft or memorandum is per se exempt from disclosure.

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Q: Is the CPRA draft/memo exemption broad or narrow?

A: Apparently, quite narrow. In the only case interpreting this exemption, Citizens for a Better Environment v. Department of Food Agriculture, 171 Cal. App. 3d (3d Dist. 1985), the California Court of Appeal has set forth a three-step analysis to determine whether it applies, and if so to what extent.

• First, it applies only to documents that are "pre-decisional," namely whose contents contribute to the reaching of some administrative or executive determination. A follow-up report on the effectiveness of an earlier decision would probably not meet this first requirement, that is, unless it was also prepared to inform a new decision.
• In addition, the exemption applies only to documents that are not normally kept on file. "If preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed," said the court.
• Assuming a document is pre-decisional and not customarily retained "in the ordinary course of business," the exemption may apply to any portion of its contents that amounts to "recommendatory opinion." That is, statements as to what can, should or must be done about a given state of affairs in terms of legal or governmental action may be withheld under the exemption. But other portions which consist of factual reporting or observations - that such and such is the case - or even opinionated judgments about a factual state of affairs - that such and such is the worst case the author has seen - are not eligible for the exemption. The distinction between the two types of content, said the court, is that the public interest favors disclosure of the factual background of official decision-making but that it also supports a confidential breathing space for those who formulate policy options. allowing them freely and candidly to explore alternatives and venture tentative suggestions for action, without fear of reproach upon subsequent disclosure of their thought processes.

In summary, as interpreted in the Citizens case, the "draft-memo" exemption in the Act applies only rarely and in a confined manner: to the "recommendatory opinion" portions of "pre-decisional" documents that are not ordinarily retained by the agency.

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Q: Is the possibility that a draft may be revised before being submitted for formal action sufficient justification for a preliminary draft exemption?

A: No. Cited in the Citizens case is a much older appellate decision, predating the CPRA, which concludes that if records in official files concern matters of public interest, the fact that they have not yet been formally approved by some decisional body, and are "tentative and ... liable to error or alteration" is not a justification for withholding them from the public (Coldwell v. Board of Public Works, 187 Cal. 510 (California Supreme Court, 1921)). Thus the argument that the content of a consultant's report, for example, may be subject to revision by an agency staff prior to being submitted to the policy-makers, and may be "misleading" if released in its initial version, has not been a sufficient basis for non-disclosure in California for at least 75 years.

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Q: Is a preliminary draft or internal memo exempt in any event under the broader, judicially adopted "deliberative process" privilege?

A: Not necessarily. Some have speculated that the California Supreme Court's engrafting of the "deliberative process privilege" onto the CPRA in effect swallowed or supplanted the "draft-memo" exemption, since both trace their policy origins to the same common law principle embodied in Exemption 5 of the federal Freedom of Information Act. In Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991), the court employed the CPRA's balancing test in Section 6255 (analyzed below) to conclude that the public interest in knowing the flow of visitors to Governor Deukmejian's office over a five-year period was outweighed by the public interest in candid policy formation reflected in the deliberative process privilege. The latter privilege, recognized in federal courts as a basis for limiting disclosure under FOIA, was cited as a sound reason for upholding the denial of a request by the Los Angeles Times for copies of the governor's daily appointment calendars for the first five years of his incumbency.

But the court in Times Mirror noted that the "draft-memo" exemption in Section 6254 (a) did not apply to the calendars, and in fact no one had argued that it did, since the calendars were neither drafts nor memoranda within the meaning of that exemption; nor were they "preliminary" in any real sense; and there was no question that they were preserved in the ordinary course of business. Times Mirror is thus a case which applies the policy underlying the CPRA's "draft-memo" exemption to documents which for various reasons would not qualify for the exemption. This approach has since been used to exempt, under the deliberative process privilege, phone billing records that could be used to show long distance or cellular phone calls placed by city council members as part of official business (Rogers v. Superior Court, 19 Cal. App. 4th 469 (2d Dist. 1993)). Accordingly, if a document is a preliminary draft or memorandum of the pre-decisional variety, the relevant exemption should be the limited or qualified provision in Section 6254 (a), not the more expansive deliberative process privilege applicable on a case-by-case basis to other kinds of documentary information.

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