Explaining the PRA's Deliberative Process Exemption

The purpose of the Public Records Act (PRA) exemption in RCW 42.56.280, named the "deliberative process" exemption by the courts, is "to safeguard the free exchange of ideas, recommendations, and opinions prior to decision" (Hearst Corp. v. Hoppe (1978)), "to protect the 'give and take' of deliberations that are necessary to agency decision-making and to formulate agency policy." (ACLU v. City of Seattle (2004)). Like many PRA exemptions, it is a layered provision that has to be carefully peeled to understand what it covers. This post will address the basic considerations in applying this exemption.

First, let's look at the wording of this exemption. RCW 42.56.280 provides:

Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended are exempt under this chapter, except that a specific record is not exempt when publicly cited by an agency in connection with any agency action.

This is how the Washington Supreme Court (PAWS v. Univ. of Washington (1994)) described the test to determine whether a record is covered by this exemption:

In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not raw factual data on which a decision is based. 

Here are five issues to keep in mind when applying the exemption.

1. Matters that are factual are not covered by the exemption, so redaction rather than complete exemption of the record might be required. Brouillet v. Cowles Publishing Co. (1990).
2. The exemption is not limited to intra-agency documents prepared by a government agency; it can apply to documents prepared by persons from outside the governmental agency. ACLU v. City of Seattle (2004).
3. Documents concerning the implementation of policy are not covered by the exemption. Cowles Publ'g Co. v. City of Spokane (1993).
4. The exemption does not apply once the policies or recommendations contained in the records are implemented. Brouillet v. Cowles Publishing Co. (1990) and Cowles Publishing Co. v. Spokane (1993).
5. If the document is publicly cited in connection with an agency action, the exemption no longer applies. Overlake Fund v. City of Bellevue (1991).

Practice Tip

Preliminary drafts of documents containing policy recommendations sometimes have no retention value - when they "do not represent significant basic steps in the preparation of record document" - and are allowed to be destroyed when no longer needed. See Local Government Common Records Retention Schedule (CORE), DAN GS50-02-05. If so, an agency should not retain them, thus avoiding potential time-consuming analysis of whether the exemption applies. But use caution. Some preliminary drafts must be retained for a specified period of time.

This is a quick overview. There are other issues related to this exemption and additional court decisions interpreting it. Agency staff should work closely with their public records officer and legal counsel. For further information on this exemption, see the Attorney General’s Open Government Manual (Chapter 2) discussion of this exemption.

Have a question or comment about this information? Let me know below or contact me directly at jdoherty@mrsc.org.