Preliminary Drafts exemption

5 ILCS 140/7(1)(f) is also known as the preliminary drafts exemption. The stated purpose of the exemption is to prevent “ “Preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated,” from being disseminated to the public before employees of a given agency can fully form their policy or project. This is a commonly invoked exemption, and federally it has been more clearly defined in court cases like Hoffman v. Illinois as protecting the “give and take” of the decision making process. An important exception to the preliminary drafts exemptions is explained as, “a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body. This “extends to all those records or officers and agencies of the General Assembly that pertain to the preparation of legislative documents.”

Cases such as Hoffman v. Illinois have been key in highlighting the potential appeal arguments one could use to fight a denial under the exemption. In Hoffman v. Illinois the records that had been requested from the Illinois Department of Corrections (IDOC) were not in fact preliminary as the IDOC had claimed, but instead the final documents. In an appeal from 2015 we see this again, with a requester asking for a powerpoint presentation from the Governor’s Office of Management. Once the Public Access Counselor was able to see the powerpoint presentation for herself, it once again turned out to be the final form of the presentation, and the GOMB was cited for improperly invoking 7(1)(f).

Another possible appeal avenue is illustrated through a 2013 appeal of a denied request for uniform crime statistics from the Illinois State Police (ISP). The ISP denied the request under the preliminary drafts exemption due to their charge that the statistics were not yet confirmed accurate and thus “preliminary drafts.” In response to the appeal of denial, the Public Access Counselor cited language from Watkins v. McCarthy that determined that factual information is not exemptible under 7(1)(f) unless it is “inextricably intertwined” with the deliberative discussions. The Counselor ordered the ISP to release the statistics due to the fact there were absolutely zero deliberative qualities concerning the information requested, which was simply hard data concerning crime figures.

In order to fight a denial invoking the preliminary draft exemption one must be able to prove one of the three things. The most obvious solution is clearly the exception. If the record requested has been publicly discussed by the head of the agency or otherwise referenced publicly. If this is not the case, it may simply be that the documents are not actually preliminary and are in their final form. This is a common occurrence with strong legal precedents and is likely to be the best chance at fighting the denial. The other argument with clout is the statistics exception. There is again undeniable legal evidence that hard data like statistics are not a part of any decision making process, and cannot be denied under 7(1)(f).