INITIATIVE NO. 276 ‑- PUBLIC RECORDS ‑- ACCESS TO LISTS OF INDIVIDUALS
(1) If the welcome service requests the name of individuals who are identified as new to the area on public records, and receives such names in list form, it is requesting a list of individuals for a commercial purpose under RCW 42.17.260(5) with the consequence that a public agency without specific authority by law to provide the list is precluded from doing so by that section.
(2) The answer to the first question is not modified in any way by the conclusions that (a) the agency would probably be required to make the same information available to raw (nonlist) ‑ form‑-of AGLO 1973 § 113 [[to George Sellar, State Senator on December 12, 1973, an Informal Opinion, AIR-73613]], and (b) the most economical, practical, and indeed perhaps only way to make the information available is in list form.
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April 7, 1975
Honorable Dan Marsh
State Senator, 49th District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 38
Dear Senator Marsh:
By letter previously acknowledged, you have requested our opinion on the proper application of RCW 42.17.260(5) to a particular factual situation which you have described as follows:
". . . A business entity performs the function of welcoming persons new to an area by informing them of clubs, businesses, recreational facilities, etc. It may also supply the name and address of new residents to businesses as a means of, in part, financing its operation. It gets the name of these 'newcomers' from a public utility district.
"The public utility district culls a list of these persons from a much larger list of persons requesting service from the utilities. The utility will in the very near future install a data processing system for this aspect of its operations. Thereafter, the raw data will be fed directly into a computer and the information will be accessible only by recalling a list of the individuals sharing the characteristic of being newcomers to the area."
Your questions are as follows:
"1. If the welcome service requests the name of individuals who are identified as new to the area on public records, and receives such names in list form, is it requesting a list of individuals for a commercial purpose under RCW 42.17.260(5) with the consequence that a public agency without specific authority by law to provide the list is precluded from doing so by that section?
[[Orig. Op. Page 2]] "2. Is the answer to the first question modified in any way by the conclusions that (a) the agency would probably be required to make the same information available in raw (nonlist) form‑-of AGLO 1973 §113 [[to George Sellar, State Senator on December 12, 1973, an Informal Opinion, AIR-73613]], and (b) the most economical, practical, and indeed perhaps only way to make the information available is in list form?"
We answer your first question in the affirmative and your second in the negative for the reasons stated in our analysis.
Initiative No. 276, as approved by the voters at the November 7, 1972, general election, is a comprehensive enactment consisting of four major substantive chapters. Your question pertains, particularly, to Chapter IV, relating to public records, which is now codified as RCW 42.17.250-42.17.340. The term "public records" is defined in RCW 42.17.020(24) to mean
". . . any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics."
For the most part, this chapter of the initiative is aimed atenhancing public access to such records of public agencies rather than limiting or restricting it. There are, however, a number of specific exemptions from the initiative's requirements with respect to such access ‑ primarily based upon the potential impairment of a legally recognized right of personal privacy on the part of the persons about whom information is contained in certain records. See, RCW 42.17.260(1) and RCW 42.17.310.
In addition, after setting forth the essential substantive requirements of this chapter with respect to access, the first of these two statutes, RCW 42.17.260, provides in subsection (5) that:
[[Orig. Op. Page 3]] "This chapter shall not be construed as giving authority to any agency to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies shall not do so unless specifically authorized or directed by law."
Based upon this provision we answer your first question in the affirmative; i.e., under the facts stated the welcoming service would be receiving a "list of individuals for commercial purposes," and therefore, the public agency involved, a public utility district, would be prohibited from providing that list in the absence of specific authority to do so.
Unquestionably, the proposed use of the material requested would be for a commercial purpose. The business entity involved is obviously a commercial enterprise and it would be providing the information which it received to other commercial enterprises for their business endeavors. That being the case, there would clearly be a commercial purpose involved in the request.
Furthermore, it is apparent that the purpose of compiling such information as would here be involved is to facilitate contacts with the new residents in question to make them aware of their new surroundings, to solicit their participation in community activities, and to make them aware of business commercial entities and their services in the area. It appears to us that this is the exact type of activity (irrespective of the positive benefits that undoubtedly flow from at least a portion of it) that so much of RCW 42.17.260 as we have above quoted was designed to prohibit. The evident intent of the drafters of this statute was to prevent a public agency from allowing commercial enterprises to gain access to any work product of the agency which is comprised of identifying details about individuals in list form. For better or for worse, the impact of the statute is to prevent an agency from allowing access to such lists for commercial purposes ‑ and that is precisely what would be involved in the factual situation which you have described.
Turning to your second question, it is most certainly true that the raw data from which a list such as [[Orig. Op. Page 4]] you have described would be compiled would be available to the business entity.1/ Accord, AGLO 1973 No. 113 [[to George Sellar, State Senator on December 12, 1973, an Informal Opinion, AIR-73613]], copy enclosed, in which we passed upon a different factual situation in the following manner:
"Your question, in most basic terms, is whether the existing and long-standing practice of the Chelan County Public Utility District which you have described and exemplified by your enclosures is now in violation of this prohibition. In our opinion, it is not.
"From the information which you have provided to us it does not appear that the public utility district is giving, selling or providing access to any 'lists of individuals,' as such. Instead, it is merely making its 'public records' available to members of the public (who happen also to be employees of a credit bureau) so that they can compile their own lists from information contained therein. The access thus being given is to the original records and not to any lists prepared from those records by the custodial public agency or its employees. In this regard we read RCW 42.17.260(5), supra, as precluding access to 'lists' which are prepared by the agency having custody of the records, through its own employees, from raw data contained in the various public records which are in its custody. But this, as you have described it, is not what is happening in connection with the practice you have asked us to consider in this opinion.
"Most certainly, the representatives of a credit bureau like any other members of the public are entitled, under the initiative, to examine the basic records themselves (assuming that no exemption from such public inspection applies), and based upon their examination of those records they may derive such information as they are seeking by [[Orig. Op. Page 5]] compiling their own 'lists' ‑ as contrasted with a 'list' which has been prepared by the custodial public agency."
Conversely, in the situation you have described the agency would be providing a list prepared by it ‑ and not merely allowing the business enterprise to prepare its own list from the agency's individual records of new utility service customers. This, in accordance with our answer to your first question, is the precise kind of thing that is prohibited by the statute as it now reads in the absence of specific authority to the contrary if the purpose is a commercial one.
Thus, having answered your first question in the affirmative for the reasons above indicated, we must now answer your second question in the negative. The fact that it may be easier or more economical for the information being sought to be supplied in the form of a list prepared by the public agency having custody of that information does not legally justify any modification of our answer to your initial question under the statute as it now reads. Likewise, the further possibility that the information might only be available in list form does not change this conclusion. To modify our conclusion to account for this possibility could lead to a situation in which an agency could circumvent the prohibition in RCW 42.17.260(5) entirely by keeping records of this type only in list form.
We recognize that this plain interpretation of the statute may prevent access to information which, arguably, would be used for beneficial purposes unless the agency keeps its records in a form which allows it to respond to the type of request you have outlined. Perhaps the law should be changed to recognize this difficulty, and you, as a legislator, are now in a position to initiate such a change if desired. We, however, cannot change the law or write into it an exception by the issuance of an attorney general's opinion. Rather, we must read it as it now stands and apply it to each given factual situation as it was apparently intended to be applied by those who drafted it, and the people who enacted it. The legislature is the only body which has a current opportunity properly to address the competing interests represented by RCW 42.17.260(5) and the rest of the "public [[Orig. Op. Page 6]] records" provisions of chapter 42.17 RCW.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JAMES M. VACHE
Assistant Attorney General
*** FOOTNOTES ***
1/Provided that this data does not include information which, if released, would violate a right of privacy or impair a vital governmental interest. See, RCW 42.17.260(1), RCW 42.17.310(2) and RCW 42.17.320.