PAC Issues 4th Binding Opinion of 2021 Interpreting the "Deliberative Process" FOIA Exemption
Thanks to a Municipal Minute reader who submitted a FOIA to the PAC asking for copies of any binding PAC opinions issued during the time that the Attorney General's website has been down, we have a copy of the fourth binding PAC opinion of 2021.
In PAC Op. 21-004, the PAC found a municipality in violation of FOIA after it denied a FOIA request for communications between the city and an applicant for a zoning change. The city had denied the request arguing that the communications were part of the city's "deliberative process" on the zoning application and were exempt under 7(1)(f) of FOIA. The PAC determined that the deliberative process exemption is limited to internal documents and does not cover records or communications shared with third parties. Because the requested record were exchanged between the city and a third party (the zoning applicant), they did not fall within the type of "inter- and intra-agency predecisional or deliberative material" that would be covered by the section 7(1)(f) exemption and, as a result, the PAC said they should have been released to the FOIA requester.
I have noticed that most of PAC decisions are on very obvious points of well-settled FOIA law and not helpful. I wish the PAC would expend more of their capital on providing guidance in gray areas.
ReplyDeleteIn my experience, the most helpful opinions are the advisory ones, which unfortunately are not posted or published anywhere. The binding opinions don't provide much guidance to local officials, which should be what the PAC actually wants to do.
ReplyDeleteFrom the little research I have done, a binding opinion from the PAC is most certainly going to stand up in an appellate court. Is that true? Have there been any successful appeals to rulings based on the binding opinion of 19-001 Wouldn't a lower court be just as agreeable? Please clarify to an amateur looking to expose injustice particularly regarding the Pac op. 2019-001 regarding the lack of necessity for body camera footage to be flagged, especially for the subjects involved. Has the statute not been reworded for more clarity? How can I obtain that actual case? I would like to share it with the clerk and other entities I need info from,before they refuse to release any more info.
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