How does your public entity respond if it receives a public records request for “all” documents for a particular matter? Does everything in a file need to be released, even if it is not a complete or final version?
Many public bodies may think that only a final version of a document needs to be disclosed, and that earlier versions are exempt from disclosure. However, the fact that a document is in draft form does not, by itself, warrant a basis to withhold it from disclosure.
The definition of a “public record” in ORS 192.005(5) is very broad, and includes “any information” that is “prepared, owned, used, or retained” by a public entity, “relates” to an activity of the public entity, and is necessary to satisfy the legal requirements or needs of the public entity. In most cases, notes and draft documents will meet this definition and qualify as public records.
The Oregon Attorney General’s Public Records and Meetings Manual states: “Public bodies sometimes mistakenly take the view that preliminary reports or recommendations may be withheld simply because they have not been reviewed or finalized. However, drafts or incomplete records are not inherently exempt from disclosure.”
The “internal advisory communications” exemption found in ORS 192.355(1) can sometimes be used to justify withholding notes and draft documents from disclosure. This exemption covers communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action.
The Attorney General has cautioned that this exemption does not apply unless the public body shows that the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.
The internal advisory communications exemption applies only if all five of the following criteria are met:
The information is a frank communication within a public body or between public bodies;
- It is of an advisory nature (e.g., recommendations or opinions);
- It is communicated preliminary to any final agency action;
- It covers other than purely factual materials; and
- Public interest in encouraging frank communication clearly outweighs the public interest in disclosure.
It is possible that even if parts of a record meet these criteria, some factual material contained in the record might still be released to the requester. Similarly, a report prepared for the purpose of providing an opinion or recommendation may contain purely factual portions that will be required to be disclosed regardless of the public interest in disclosure.
Give the Local Government Law Group a call if you are faced with the dilemma of whether to disclose notes or draft documents in response to a public records request. We have helped many of our clients navigate this public records maze!