Recently, the Attorney General issued a binding opinion finding that the Governor’s Office of Management and Budget (GOMB) violated the Freedom of Information Act (FOIA) by withholding a PowerPoint presentation used as training materials. The PAC drew some key distinctions in the decision between a record relied on by a public body in formulating policy, which is predecisional, and a record that is used to describe and train staff on that policy after it has been formulated, which is not.
The case began when the GOMB received a FOIA request seeking various records concerning services provided by a budget consultant to the GOMB, Donna Arduin, or her companies. The GOMB produced certain records but withheld a PowerPoint presentation, citing Section 7(1)(f) of FOIA, 5 ILCS 140/7(1)(f). Section 7(1)(f) exempts from disclosure predecisional materials in which opinions are expressed or policies or actions are formulated. The GOMB argued that the presentation was predecisional because it contained Ardiuin’s opinions, provided recommendations on gathering and analyzing budget information, and was presented to the GOMB employees to train them for their role in the budget development process.
On review in PAC Op. 15-015, the PAC reaffirmed the long held understanding that a report by an outside consultant advising a governmental entity can be predecisional. The PAC rejected the GOMB’s argument that the record in question was exempt predecisional material, however. Citing to federal case law, the PAC explained that a record must be both predecisional (meaning antecedent to the adoption of an agency policy) and deliberative (meaning a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters) to be exempt under Section 7(1)(f). The PAC cited the following characteristics of the PowerPoint that called its predecisional status into question:
- It “largely consisted of general policy considerations for budget making and conceptual principles concerning the role of government, as well as directives to the budget analysts about how to apply those principles and to communicate with the involved parties.”
- It did not “reflect the give and take of any deliberative process concerning the formulation of a specific budget, or any deliberative process between [Arduin] and the budget analysts who attended.”
- It was “straightforward policy directives and guidance for budget analysts to use when they are participating in formulating budgets.”
Accordingly, the PAC found that the PowerPoint was not predecisional because the decision about what policies and information would be provided to budget analysts to help them prepare for their role in the budget process was already complete and the slides were simply presented as guidance to the analysts. The document also was not deliberative because it explained already-chosen considerations and policies as opposed to reflecting the process of working out which policies and considerations should be used. As a result, the PAC concluded that the GOMB improperly denied the FOIA request in violation of the requirements of the FOIA.
Notably, the PAC opinion does not mean that all presentation materials must be produced under the FOIA. There are many situations one can imagine where an employee, a consultant, or another third party could provide a training or presentation to a public body and its employees that is both predecisional (because it is meant to aid in the formation of policies or actions) and deliberative (because it is part of the give and take that informs the final determination on those policies or actions). Indeed, the decision gives a good blueprint for the characteristics that the PAC would seek in such a predecisional document. But in this particular case, the public body did not meet its burden and was required to produce the documents.