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Drafts of public documents may be subject to open records law

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  1. Freedom of Information

    NMU         TEXAS         Freedom of Information         Feb 2, 2000    

Drafts of public documents may be subject to open records law

  • Broad policy of access may encompass documents that are not yet in final form if they are relied upon by government officials.

Working drafts of memorandums and other documents may be public under the state’s open records law, a divided Texas Supreme Court in Austin ruled in mid-January.

In so ruling, a plurality of the court rejected the argument that documents must be in a final form to be subject to the open records law.

The city of Garland had claimed that a memorandum written by the city manager and circulated among members of the city council in August 1993 was only a draft that was not used in any official business and, therefore, exempt from disclosure under the public records law.

But a plurality of the state Supreme Court rejected the claim, explaining that such an interpretation of the law is contrary to a policy of broad public access to government records.

“To allow a governmental body to exempt otherwise public documents from the Act simply by labeling or calling them ‘drafts’ would invite governmental bodies to circumvent the Act’s purpose,” Justice James Baker wrote for a plurality of the court. “[T]he mere creation of a draft is not transacting official business. But if the draft is used in connection with transacting official business, then the draft becomes public information.”

The memorandum, which was addressed to the city’s finance director, outlined reasons the city should fire the finance director. But instead of giving the memorandum to the finance director, the city manager instead made copies of the document and gave them to members of the city council during a closed meeting. At the meeting, the city manager and council members discussed how the city should handle terminating the finance director, who soon thereafter accepted a settlement from the city and resigned.

In September 1993, The Dallas Morning News requested all documents relating to the resignation of the finance director. The city denied the request, saying it had no such documents. The city then filed suit in state court, seeking a declaration that the memorandum was not a public record because it was only a working draft. The newspaper countersued in an attempt to force the city to disclose the record. Both the trial court and an intermediate appeals court ruled in favor of the newspaper and found the document was public.

In its appeal to the state Supreme Court, the city argued that the records law applies only to those documents that the city relies on to make a decision. The memorandum was not such a document because it was never finalized or approved by the city council, nor was it ever given to the finance director, the city claimed.

Even though the memorandum may have been a draft, it was nonetheless a public record “when the city manager and the city council used it in deciding how to handle the problem with the finance director, a decision involving the city’s official business,” Baker wrote.

In a concurring opinion that served as the official opinion of the court, Justice Craig Enoch agreed that the memorandum is public, but said the records law applies only to completed documents. “And in this case, what makes [the memorandum] completed is that the city manager presented it to the city council for decision and it was used by the council in making a decision on the problem with the finance director,” Enoch wrote.

(City of Garland v. Dallas Morning News; Media counsel: Paul Watler, Dallas)

© 2000 The Reporters Committee for Freedom of the Press

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