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Tuesday, December 27, 2022

PAC Issues 13th and 14th Binding Opinions on FOIA Challenges

The PAC issued its 13th and 14th binding opinions of 2022, both dealing with FOIA challenges and summarized below:

PAC Op. 22-013

In October 2021, a city department (Department) received a FOIA request asking for certain communications. The Department provided some of the requested records, but withheld a letter from a private attorney, arguing that the communication constituted settlement negotiations that were confidential under both federal and state rules of evidence. The requester appealed and the PAC issued an advisory determination that the Department improperly withheld the letter. The requestor submitted a second FOIA request to the Department in August 2022 seeking “copies of all records the Attorney General's Office found to be inappropriate in 2022 PAC 72362." After the Department again denied the request, requestor appealed the second denial to the PAC.

In PAC Op. 22-013 (a binding opinion), the PAC determined that the Department failed to demonstrate that the letter was exempt from disclosure under the cited FOIA exemptions 7(1)(a) and 7(1)(f) and ordered release of the letter. 

First, the PAC determined that the state and federal evidentiary rules cited by the Department (which concern the admissibility and consideration of settlement negotiations in the context of judicial proceedings) do not prohibit the disclosure of these records under FOIA. The PAC took the position that evidentiary rules have no relevance to whether a record must be disclosed to the public under FOIA.

Second, the PAC rejected the Department's reliance on the "deliberative process" exemption in 7(1)(f), finding that the Department failed to demonstrate that the letter at issue was either an inter-agency or intra-agency communication that revealed the Department's pre-decisional deliberative process concerning a potential settlement. 

PAC Op. 22-014

In PAC Op. 22-014, the PAC found a public body in violation of FOIA for failing to timely respond to a FOIA request. Nothing new for public bodies to learn from this opinion.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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