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Thursday, February 9, 2023

PAC Finds No Violation in FOIA Denial of Employee Survey Results

In 2022, a school received a FOIA request seeking certain employee survey results used in connection with preparing performance evaluations for staff members. The school denied the request citing FOIA section 7(1)(f), FOIA’s "deliberative process" exemption. After the requestor appealed the denial, the PAC issued binding PAC Op. 23-002, concluding that the school did not violate FOIA by denying the responsive survey results under FOIA exemption 7(1)(f).

Specifically, the PAC determined that the withheld employee survey responses reflected the anonymous opinions and recommendations of school employees which were used by the school as part of a specific pre-decisional and deliberative process to evaluate staff performances.

Although the requestor argued that the survey results were improperly withheld because the school failed to specifically state its intended use of the survey to evaluate staff performance, the PAC disagreed, stating that FOIA’s deliberative process exemption does not require a public body to provide advance notice of all possible uses of information it gathers before incorporating the information into its decision-making. Instead, FOIA exemption 7(1)(f) requires identifying what deliberative process is involved and the role the requested records played in the course of that process.

Here, the PAC determined that the school had sufficiently demonstrated that the disclosure of the employee survey results would be detrimental to the school’s deliberative process in evaluating staff performance and could discourage employees from providing candid opinions in the future on sensitive matters. As a result, the PAC determined that the records were properly withheld from disclosure pursuant to FOIA exemption 7(1)(f).

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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