PSBA 2021 Bulletin November/December PSBA 2021 Bulletin November/December - Page 58

it ’ s the law

it ’ s the law

That exception provides an exemption for a record that reflects :
( A ) [ t ] he internal , predecisional deliberations of an agency , its members , employees or officials or predecisional deliberations between agency members , employees or officials and members , employees or officials of another agency , including predecisional deliberations relating to a budget recommendation , legislative proposal , legislative amendment , contemplated or proposed policy or course of action or any research , memos or other documents used in the predecisional deliberations . 65 P . S . § 67.708 ( b )( 10 )( i )( A ).
However , simply because information is predecisional does not mean it is protected by this exception . As stated by the Commonwealth Court in Pennsylvania Dept . of Educ . v . Bagwell , 114 A . 3d 1113 ( Cmwlth . 2015 ), in order to establish the predecisional deliberative exception , an agency must show : ( 1 ) the information is internal to the agency ; ( 2 ) the information is deliberative in character ; and ( 3 ) the information is prior to a related decision , and thus predecisional . Id ., citing Carey v . Pennsylvania Dept . of Corrections , 61 A . 3d 367 ( Cmwlth . 2013 ). The court concluded :
As to the predecisional deliberative exception , this Court holds each of the three elements must be established by the underlying facts , as the absence of any of the elements 56 PSBA Bulletin November / December 2021