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A deliberative process exemption to open records requests is one that shields from public scrutiny that papers and materials that elected officials use in the course of reaching a decision. There are two clear arguments for this exemption. The first argument for the exemption centers on the notion that public officials should be able to conceal much of the thought process behind making a decision in order to protect the free flow of opinions and information. The courts and legislatures have traditionally argued that without the exemption in place, the ability of public officials to receive opinions from their constituents would be hampered. In addition, the exemption is in place to protect the internal thought processes and notes of public officials from public scrutiny, as predecisional material is typically considered work product and is thus exempt. Various states approach this exemption differently, with some enforcing a broad definition while others reject it outright.
Statutes
The California Public Records Act includes in its list of exemptions, " Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure."[1]
The act also includes an exemption to protect the free flow of information, exempting "Correspondence of and to the Governor or employees of the Governor's office or in the custody of or maintained by the Governor's Legal Affairs Secretary."[2]
The Legislative Open Records Act which governs the records of the legislature also contains an exemption, exempting specifically "Preliminary drafts, notes, or legislative memoranda, except" information relating to specific legislation that is being considered.[3]
