PAC Issues Binding Opinion Regarding the Applicability of Predecisional Exemption to Employee Survey Results
Recently, the Public Access Counselor (PAC) issued a binding opinion concerning the Freedom of Information Act (FOIA). In the decision, the PAC upholds a school’s decision to utilize the Section 7(1)(f) (predecisional) exemption under the FOIA to withhold written responses and data collected through an employee survey.
At issue was a survey sent via email to school employees by a representative in the school’s human resources department, inviting them to participate in the survey and share how they were feeling about their work. The email also noted that all survey responses were confidential. Following the survey, the school received a FOIA request seeking employees’ written responses to the survey questions. In response, the school provided the requestor with two documents created by a global analytics firm summarizing the data, including the results of a portion of the survey’s questions. The school, however, withheld the employees’ written responses to free-response questions pursuant to Section 7(1)(f) of the FOIA, stating the responses were intra-agency records used by the president to inform the performance component of the principal’s evaluation and to help the school determine what needs to be done to improve the school. The requester appealed the school’s response to the PAC, alleging that the school improperly withheld the survey responses in violation of the FOIA.
The PAC determined that the school’s denial was proper. The PAC analyzed several federal court decisions examining the applicability of the deliberative process exemption in the federal FOIA to survey results. In accordance with the federal decisions, the PAC determined that the records were properly withheld pursuant to 7(1)(f) of the FOIA because the withheld records reflect school employees’ anonymous opinions and recommendations, not factual information. The PAC determined the disclosure of such responses would have a chilling effect on the internal exchange of advice, opinions, and recommendations. Specifically, the PAC found that the survey responses that were gathered and relied upon by the president to evaluate the principal would have been revealed by the FOIA request, which may cause the president to second-guess. Further, the PAC determined that, should the school be required to disclose the requested records, it could be discouraged from soliciting employees’ opinions in the future. Accordingly, the PAC determined the school district demonstrated that the employees’ responses to survey questions soliciting opinions were used in the pre-decisional, deliberative process of evaluating the school’s principal, and as such, were properly withheld pursuant to Section 7(1)(f).
If you have any questions regarding this decision or any FOIA matters, please contact one of the authors of this alert or any Franczek attorney.