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Documents under Preparation

last modified Sep 10, 2013 12:00 AM

THIS IS AN ARCHIVED PAGE. THE INFORMATION BELOW IS NOT REGULARLY UPDATED. LAST PARTIAL UPDATE IS FROM DECEMBER 2012. THE CURRENT UPDATED PAGE CAN BE FOUND HERE.

Overview

In many countries, “documents under preparation” or “documents during the internal preparation or examination of a matter” are excluded from the coverage of the ATI law or other disclosure requirements. The purpose of excluding such documents is to prevent the notepad from being pulled away from under the civil servant’s pen, so to speak. This is a legitimate concern. However, many involved with ATI regimes believe that the concern is better dealt with through the regime of exceptions than through a narrowing of the regime’s scope of coverage.  The danger of excluding unfinished documents at the definitional level is, in the first place, that the public interest override will not apply so that these documents will be subject to automatic withholding even where there is a very strong public interest in their disclosure, as in the case of draft policies or decisions of public bodies. Often, there is a strong case that such documents should be available for public discussion before they have been finalized. Second, this definition may be abused, for example by claiming that documents which are always under preparation, such as databases, fall outside the access regime.

Dealing with unfinished documents under the regime of exceptions (rather than exclusion from the scope of coverage) ensures that the public authority seeking to withhold the document in question must weigh whether or not disclosure would cause actual harm, or there is an overriding public interest in disclosure, and must state any reasons for refusal in writing.

India’s Right to Information Act provides a good model in this respect. The Act contains neither an exclusion nor an exception for documents under preparation or pending the conclusion of a decision-making process. Instead, the Act requires that all public authorities publish all relevant facts while formulating important policies or announcing decisions that affect the public.

In 23 of 26 European countries surveyed, the definition of information includes preparatory notes and file notations, although in Latvia and Moldova, frequent users of the law note that they are often not provided in practice. Reflecting this widespread practice, the European Convention on Access to Official Documents makes clear that it applies to “documents under preparation.”

The term “preparatory document” or “document under preparation” is used in two slightly different ways. The term may refer to a document that is (a) unfinished in the sense that it is still being drafted; or (b) used as background to, or for purposes of, taking a decision or developing policy. This dual use is noted by the Explanatory Memorandum to Council of Europe Recommendation 2002(2) which states:

In member states, there are different traditions and practices concerning the qualification of documents as “official documents”. In principle, unfinished documents are not covered by this notion. Furthermore, in some member states, documents which contribute to the decision-making process (for instance, opinions, memoranda, etc.) are not considered as official until the decision to which they refer is taken. However, in other member states, documents can be made available before the decision for which the document is being prepared is taken, in particular to enable participation in the decision-making process.

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Unfinished documents

In 18 of 26 European countries surveyed, the definition of information subject to access includes documents under preparation in the sense of unfinished documents. Indeed, in a number of countries it is clearly established in law and practice that such documents fall under the broad definition of information that is subject to the law. In the UK, for example, the definition of information includes documents under preparation or draft documents.

In at least two of these 18 countries, however, there is nevertheless an exception for information that is not complete and would lead to an erroneous interpretation of the document. In Belgium there is an exception for documents that are not final or incomplete and where disclosure could lead to erroneous interpretations. Macedonia has a similar provision with an exception for information contained in a document that is being compiled and still being harmonized within an information holder, the disclosure of which would cause misunderstanding of the contents of the document in question

A further five countries specifically exclude unfinished documents: France, Montenegro, Netherlands, Slovenia and Sweden.

In Montenegro, for example, only the legislature has the obligation to supply draft documents.

In the Netherlands, unfinished documents need not be released but there is nevertheless the possibility that a judge may order the release of such information should the institution seem to be taking an undue time to finalize them.

Article 2 of France’s 1978 ATI law states: “The right to delivery shall apply to completed documents only. It shall not apply to documents that are instrumental in an administrative decision until the latter has been taken.” This exemption covers two types of documents: (a) “preparatory documents” used as input to a decision which has not yet been taken (there is one exception to this rule: when the final decision relates to the environment, preparatory documents such as impact studies can be communicated); and (b) unfinished documents still being prepared.

Concerning the remaining three countries surveyed -- Denmark, Moldova and Norway --  information was either not supplied or not clear. [more info needed re these countries]

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Documents which contribute to the Decision-Making Process

In some countries, documents may be excluded from coverage under the ATI regime if they are used as background for an administrative decision, policy development or other internal process. Exceptions for such documents are sometimes justified by reference to the notion of a need for “space to think” within a public authority as well as the protection of more formal decision-making processes.

At least 19 of the 26 European countries surveyed do not exclude preparatory documents from the scope of coverage of ATI laws, but instead protect internal processes through the regime of exceptions. This has the advantage of leading to a narrower scope of limitation and also brings the information within the scope of the public interest override.

Only in France and Sweden is it clear that such information is excluded from the definition of information. In other countries, the exception applies only until the decision has been taken. In some countries, the scope of the exception is limited to certain types of preparatory documents. In yet other countries, specific harm-based exceptions have been crafted.

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Country Examples

Bulgaria

File notations, documents under preparation and e-mails are not excluded from the scope of the law. However, access to administrative public information may be restricted (subject to exception) if it: “(1) relates to the preparatory work of an act of the bodies, and has no significance in itself (such as opinions and recommendations prepared by or for the body, reports and consultations); or (2) contains opinions and statements related to on-going or prospective negotiations to be led by the body or on its behalf, as well as any data relating thereto, and was prepared by the respective bodies' administrations.” (APIA, Article 13 (2).)

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Czech Republic

The obligation to provide information does not apply to questions about opinions or future decisions. The exception applies only to the period before the decision is finalized. There is also an exception for internal instructions and staffing regulations.

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Hungary

File notings are subject to disclosure, although they are protected by a quite complicated exemption. This exemption appeared in the FOI Act after a Constitutional Court decision of 1994 referred to the fact that in the member states of the CoE “documents in preparation” are not considered to be under the rules of access to documents. In any event, in practice it is almost impossible to prove that any preparatory memo, data, or e-mail exists unless it has a registry number.

Article 19/A of the former ATI Law provided that preparatory documents or data, which contributed to the process of reaching a decision, would not be public until 10 years after their creation, unless permitted by the head of the body responsible for the data or by a new law or rule.

The Hungarian Civil Liberties Union (HCLU) brought three cases that resulted in court decisions interpreting Article 19/A with regard to the process of decision making. The Metropolitan Appeal Court found in these cases that only those documents can be withheld which are prepared in, or as part of, the decision making process and not those which are prepared for the decision making process. In other words, if a state body asks experts for their opinions, orders studies, consults bodies which have separate legal personalities (not employees of the decision making body) and use these documents to help in their decision-making, then these documents shall be public.

In another case, however, the Metropolitan Appeal Court ruled that a ministry was justified in refusing to disclose drafts of the Constitution until the final draft was sent for administrative consultation. The Court concluded that the ministry was justified in withholding the drafts on the ground that “although the work on these documents had finished, they are the basis of the decision of a higher body.

Sections (5) and (6) of Article 27 of the 2011 ATI law stipulate similar provisions to that of Article 19/A of the previous law. Nevertheless, Article 30(5) of the 2011 ATI law incorporates a mandatory public interest test into the deliberation of FOI requests, by requiring the head of the body concerned to "[consider] the gravity of the given public interest relating to ensuring or denying access to [the requested] data." As a result, Article 30(5) of the 2011 ATI law eliminates the "automatic refusal" the earlier legislation allowed for.

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India

Within three months of the enactment of the Right to Information (RTI) Act the Department of Personnel and Training (DoPT) - the central agency for the law’s implementation - declared on its website in the FAQs section that file notings were not included within the definition of “information”. This sparked protests from civil society groups. In response to these protests the Prime Minister’s office issued a directive that file notings relating to socio-economic and developmental matters may be disclosed but the identity of the official who recorded the notation would not be revealed. This added to the confusion.

However the Central Information Commission has ruled in several cases (e.g. Suchi Pandey v. Ministry of Urban Development) that file notings in the nature of opinion and advice provided by officials involved in the chain of decision-making are implicitly covered within the definition of “information” given in Section 2(h). The Commission found that file notings must be disclosed unless one or more of the enumerated exemptions in the Act (sections 8 and 9) apply and the public authority fails to establish a public interest in keeping the notings secret. This position has been reiterated in several decisions by the Central and State Information Commissions since then (e.g R.K. Garg v. Ministry of Home Affairs).

For instance, the Commission, sitting in Full Bench, held that both “information” and “record” are inclusive, as used in the RTI, and include file notings. The Ministry of Railways’ Department of Personnel and Training had released the final conclusion of an administrative decision about whether or not to confer a human resources benefit, but refused to release the internal deliberations – the file notings – of that decision. The file notings were important because they would have shown any irregularities or abuses in the process. The Commission had already held in 2006 that file notings are “an integral part of a file” and that citizens should have access to them (Satyapal v. CPIO TCIL). But in another case in the same year, the Commission worried about protecting the confidentiality of file notings that were intended only for a supervisor to see (Agarwal v. Ministry of Home Affairs). Given the potentially conflicting decisions, the Commission, en banc, decided that it was important to emphasize that file notings should be presumed public unless release would conflict with the public interest or the notings were protected by an established exception (Pyare Lal Verma v. Ministry of Personnel, Public Grievances & Pensions).

In June 2006 the Government announced its decision to amend the RTI Act to restrict access to file notations. If enacted, the amendments would have kept all file notings other than those related to socio-economic and developmental matters out of the purview of the Act, granted anonymity to officials who record notings and prevented any access to opinions of officers before completion of the decision-making process. RTI activists and civil society groups around the country launched the “Save RTI Campaign” in response to the Government’s move. Sensing the public opinion against the proposed amendments, the Government backtracked and did not table the amendments that year. However, the threat of amendments to restrict the scope of the Act has not disappeared.

There is no exemption in the RTI Act for documents under preparation or pending the conclusion of a decision-making process. In fact Section 4(c) of the Act requires that all public authorities publish all relevant facts while formulating important policies or announcing decisions that affect the public. This implies that, by law, any citizen can seek and obtain information about a public policy even before it has been completed.

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Ireland

There is an exception for records relating to deliberative processes. In Wall and Department of Health, the Information Commissioner indicated that records relating to deliberations of public bodies may be withheld only until the decision to which they relate has been made, noting: “[T]here is a strong argument in favour of protecting proposals from release at an early stage in order to allow the public body to properly consider the matter. However, once the decision to proceed with any proposed action is taken, the need to withhold the release of the information weakens.”

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Latvia

There is an exception for internal information and “information necessary to issue a final decision on a matter as well as such information prepared by outside actors”, such as consultants. Normally this applies to draft or unfinished documents.

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Netherlands

There is an exception for documents about financial deals, which become accessible after the final signature and/or after the effectuation of the deal.

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Romania

There is an exception for information regarding the deliberations of the authorities, but only if they are also classified by law.

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South Africa

A Provincial Premier had appointed a commission to investigate irregularities in the appointment of traditional leaders and refused to disclose the report of the commission. He argued that he had obtained the commission report for the purpose of addressing a policy question, within the meaning of Section 44(1) of PAIA, which exempts from disclosure “an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy… .” The Supreme Court of Appeal rejected his claim; it ruled that the word “obtained” should be “restrictively” interpreted so that it could not provide a wide exemption for any such record vaguely associated with a policy decision, but rather “it must mean procuring information” in terms of the policy decision specifically (Minister for Provincial and Local Government v. Unrecognised Traditional Leaders, para. 15-17). In another case, the High Court ordered the release of draft reports after the final report of a joint investigation team had been presented to Parliament. The Court reasoned that the draft reports were history and could not “reasonably be expected to frustrate the deliberative process” pursuant to section 44(1)(b)(i) (CCII Systems (PTY) Ltd v. Fakie and Others).

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United Kingdom

The Act’s definition of information includes paper records, emails, information stored on computer, audio and video cassettes, microfiche, maps, photographs, handwritten notes or any other form of recorded information. There is no exemption in the FOI Act for documents under preparation or draft documents. Such documents are accessible, subject to exceptions in the legislation e.g. for policy advice. The EIRs allow an authority to refuse to disclose information to the extent that the request relates to material which is still in the course of completion, unfinished documents or incomplete data. This exception is subject to a public interest test.

The Information Tribunal determined that minutes of a meeting of the Board of Governors of the British Broadcasting Corporation (BBC) should be disclosed even though the Information Commissioner had found that release of the minutes could inhibit “the free and frank exchange of views for the purposes of deliberation.” The Tribunal found that there was an overriding public interest in the information and that, by the time the request was made – one year after the meeting – significant aspects of the meeting were already publicly known (Guardian Newspaper Ltd. and Heather Brooke v. Information Commissioner).

The case arose when a journalist filed a request in March 2005 for the minutes of the BBC Governors’ meeting that discussed how to respond to the Hutton Report. The Hutton Inquiry investigated the death of government weapons inspector David Kelly, who was found dead after being named as the possible source of a BBC story about the government’s dossier on Iraq’s Weapons of Mass Destruction. The BBC story suggested that the government had inserted intelligence into the dossier, probably knowing it to be wrong, and had ordered the dossier to be “sexed up”. The Hutton Report rejected these allegations and criticized the BBC.

In reaching its decision, the Information Tribunal considered the following factors to be particularly significant:

  1. Given the role of the Governors in regulating the BBC as trustees of the public interest, there is a strong public interest in information about the workings of the Governors, and all the more so in the particular context of this case. (Para. 120)
  2. The Governors would have been aware that the Act applied to the BBC, and that their deliberations might become public at some future date. (Para.100)
  3. The passage of time since the creation of the information had an important bearing on the balancing exercise; the requests were made more than a year after the meeting and at a time when the matters discussed at the meeting were  no longer the subject of deliberations within the BBC. (Para. 105)
  4. Importance and sensitivity are not the same thing. The subject-matter of the meeting was of the very highest importance. However, the Commissioner markedly overstated the degree of sensitivity. Within hours after the meeting was over, the outcome was publicly known. (Para. 110) Moreover, “The more sensitive the future material at the time of an information request, the greater the prospect that the public interest represented by the exemption will be held to outweigh the public interest in disclosure of that particular material.” (Para. 113)

The Tribunal ordered disclosure of the minutes and the BBC complied.

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United States

The FOIA does not clearly include or exclude preparatory memos and other predecisional records like file notations.  However, there is an exemption from disclosure for “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”  5 U.S.C. § 552(b)(5).  This exemption has been interpreted by courts to encompass records that would be covered by certain common law privileges were they sought through discovery in civil litigation including: deliberative processes, work product, attorney-client communications, and confidential commercial communications.  The deliberative process privilege protects advice, recommendations, and opinions which are part of the deliberative, consultative, decision-making processes of government (NLRB v. Sears, Roebuck & Co.). The exemption only protects documents that are predecisional in nature, for instance if they make recommendations or express opinions on matters to be decided by the agency (Vaughn v. Rosen). The exemption can never apply to final opinions or dispositions (NLRB v. Sears, Roebuck & Co.). Even if a document is predecisional, “the privilege applies only to the ‘opinion’ or ‘recommendatory’ portion ... not to factual information which is contained in the document” (Coastal States Gas Corp. v. Dep’t of Energy). Therefore, factual information contained in a document portions of which are exempt under the deliberative process privilege must be released provided the non-exempt portions are segregable.

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