Exemption 708(b)(9) describes certain draft records that may be withheld in response to a Right-to-Know Law request. Appeals Officer Topé Quadri provided the legal analysis. As of August 6, 2024, this exemption has been cited in 166 OOR appeals.  

Section 708(b)(9) exempts:

The draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or amendment thereto prepared by or for an agency.

Most of the final determinations dealing with this exemption ascertain if the agency proved that the instant record falls into a cited category. Namely, an agency must provide factual support and non-conclusory evidence.[1]

A few notable pieces of case history on this exemption:

• It only covers drafts that fall in the specific categories set forth.  For example, it does not apply to drafts of transcripts[2], but draft zoning ordinances are exempt[3].
• Once a draft is presented or shared in a public capacity, the exemption no longer applies, even if it is subject to modification at a later date.[4]
• In an email discussing a draft document, the exemption may apply to the attached draft, but not to the emails themselves.[5]

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[1] W. Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 397 (Pa. Commw. Ct. 2015).

[2] Public Interest Legal Foundation v. City of Phila. Office of City Comm’rs., OOR Dkt. AP 2018-0256, 2018 PA O.O.R.D. LEXIS 562.

[3] Watt v. State College Borough, OOR Dkt. AP 2020-0113, 2020 PA O.O.R.D. LEXIS 1777.

[4] Phila. Public Sch. Notebook v. Sch. Dist. of Phila., 49 A.3d 455,  451-52 (Pa. Commw. Ct. 2012).

[5] Shepherd v. City of Phila. Dep’t of Public Health, OOR Dkt. AP 2021-0872, 2021 PA O.O.R.D. LEXIS 1298.