Deliberative process exemption-Michigan

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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 Michigan Freedom of Information Act has a deliberative process exemption in MCL 15.243 which exempts "Communications and notes within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to a final agency determination of policy or action." There is a balancing test against the public interest; "This exemption does not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure."

See also

References