"Draft" policy not a public record

In a disappointing decision, on March 23, 2009, the Office of Open Records found that a draft policy that was distributed to a school board for deliberation at a public meeting - and approved at that meeting - was not a public record. See Meloy v. Blairsville-Saltsburg School District, AP 2009-0094. In that case, Dr. Meloy requested the version of Policy 010: Conflict of Interest/Anti-Influence that was distributed to all nine Board members at a regular,open meeting on February 4, 2009. Copies of the "draft" policy were not provided to the public at the meeting, however, the Board discussed the policy and approved it at that meeting.

The new Right to Know Law makes it clear that records that are presented to a quorum of a Board for public deliberation are public records, unless they are otherwise exempt under the Right to Know Law (section 708(b)(10)). We interpret this to mean that most records in a board packet become public records at the time that they are distributed to a quorum of the board (assuming that they are intended for public discussion). There is, in section 708(b)(9) of the law, an exemption for "drafts," and the Office of Open Records found that this policy was exempt as a draft.

The problem with interpreting "draft" this broadly, however, is that it virtually eliminates the provision in (b)(10) that makes board packets presumptively public. Isn't just about everything in a board packet subject to being called a draft?

The intent behind the "board packet" provision in (b)(10) is to allow the public to follow along with board discussions about issues that affect them, by having access to the documents that are being discussed. In our opinion, the only way to give meaning to both (b)(9) and (b)(10) is to interpret (b)(9) to mean internal, working drafts. Once a document is presented for public deliberation under the Sunshine Act, the public has the right to review and understand it. Access also ensures that interested members of the public have a "reasonable opportunity to comment" on matters that are before a board, as required under the Sunshine Act. In this case, the "draft" policy was presented to the board, discussed at a public meeting, and approved, without any opportunity for the public to review it.

Next post, we intend to review some of the OOR's decisions that are pro-open government - and there are many.



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