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AGO 1988 No. 12 - June 08, 1988
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

PUBLIC DISCLOSURE ‑- PRIVACY ‑- CONFIDENTIAL INCOME INFORMATION 

            1.         When applying the statutory privacy standard in RCW 42.17.255, a public agency may inquire into the purpose for which a record is requested and may use the answer to aid in determining whether the public has a legitimate interest in obtaining the information, but the public agency may not decline to furnish the records for public inspection and copying solely because the requester refuses to furnish a reason for the request. 

            2.         A public agency may condition access to a public record containing a list of individuals on the requester's promise that the record will not be used for a commercial purpose, but may not require the requester to enter into a hold harmless agreement to that effect. 

            3.         The term "confidential income information" as used in RCW 84.40.020 refers to information that has been communicated in confidence in connection with the assessment of real property pursuant to chapter 84.40 RCW, which has not been publicly disseminated by the taxpayer or made known to more than a limited number of individuals, whose disclosure would either be highly offensive to a reasonable person and not of legitimate concern to the public or would result in unfair competitive disadvantage to the taxpayer.

                                                              - - - - - - - - - - - - -

                                                                    June 8, 1988

Honorable James R. Miller
Lewis County Prosecuting Attorney
P.O. Box 918
Chehalis, WA 98532

Cite as:  AGO 1988 No. 12                                                                                                                

 Dear Mr. Miller:

             By letter previously acknowledged, you have requested our opinion on several questions concerning the public records provisions of chapter 42.17 RCW.  We have condensed and paraphrased your questions as follows:

             1.         When applying the statutory privacy standard in RCW 42.17.255, may a public agency inquire into the purpose for which a record is requested to  [[Orig. Op. Page 2]] determine the legitimate concerns of the public in disclosure?

             2.         May a public agency condition access to a public record containing a list of individuals on the requester's promise that the record will not be used for a commercial purpose, and may the agency require the requester to enter into a hold harmless agreement to that effect?

             3.         What income information is included within the definition of "confidential income information" under RCW 84.40.020, and to what extent is such confidential income information exempt from disclosure under chapter 42.17 RCW?

             We answer your questions as set forth in the following analysis.  Prior to directly addressing your questions, however, we believe a general discussion of the 1987 amendments to the public records provisions will be helpful.  We discuss these amendments in the introductory background below.

                                                                 BACKGROUND

             The Legislature in 1987 enacted several amendments to the public record provisions.  The Legislature provided a relatively clear statement of its intent:

             The legislature intends to restore the law relating to the release of public records largely to that which existed prior to the Washington Supreme Court decision in "in re Rosier," 105 Wn.2d 606 (1986).  The intent of this legislation is to make clear that:  (1) Absent statutory provisions to the contrary, agencies possessing records should in responding to requests for disclosure not make any distinctions in releasing or not releasing records based upon the identity of the person or agency which requested the records, and (2) agencies having public records should rely only upon statutory exemptions or prohibitions for refusal to provide public records.  Further, to avoid unnecessary confusion, "privacy" as used in section 2 of this 1987 act [RCW 42.17.255] is intended to have the same meaning as the definition given that word by the Supreme Court in "Hearst v. Hoppe," 90 Wn.2d 123, 135 (1978).

 Laws of 1987, ch. 403, § 1, p. 1546 (uncodified).  The Legislature clearly intended to clarify or overturn certain aspects of the court's decision inIn re Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986).

              [[Orig. Op. Page 3]]

             TheRosier case presented two separate and distinct requests for lists of the customers of a public utility district.  The first request came from Mr. Rosier, who apparently wished to make a political mailing in an upcoming election campaign for P.U.D. commissioner.  The second request came from law enforcement officials and other governmental entities that had received such customer lists in the past.  Although the assessor and treasurer also sought access, their intended use was not discussed.  The court focused on the possible use of the records by law enforcement officials for a "fishing expedition" to identify possible marijuana-growing operations by locating unusually high electrical power consumption by some customers.

             The court first analysed Mr. Rosier's request for the list.  It found that a privacy interest existed in any record that identified an individual and revealed "unique facts" about that person.  Rosier was the first case so interpreting the act.  While the court ultimately found that the list was not exempt from disclosure because of this privacy interest, its analysis created uncertainty regarding the need to identify statutory exemptions covering the records.  Previously, agencies had relied upon statutory language protecting specific categories of records and, therefore, previous discussions of privacy by the courts had only occurred in the context of such statutory exemptions.

                                           NEED TO CITE STATUTORY EXEMPTION

             The Legislature clearly repudiated the notion that agencies could withhold records based solely on general concerns about privacy.  Agencies now must first identify a statutory provision wherein the Legislature evidenced its intent to exempt the record from inspection by the public.  The amendments to RCW 42.17.260(1) and RCW 42.17.340(1) incorporate this general intent:

             Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (5) of this section, RCW 42.17.310, 42.17.315, or other statute which exempt or prohibits disclosure of specific information or records.  To the extent required to prevent an unreasonable invasion of personal privacyinterests protected by RCW 42.17.310 and 42.17.315, an agency shall delete identifying details in a manner consistent with RCW 42.17.310 and 42.17.315 when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing.

              [[Orig. Op. Page 4]]

 Laws of 1987, ch. 403, § 3, p. 1547 (amending RCW 42.17.260(1)) (amendatory language emphasized).

             Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why its has refused to allow inspection or copying of a specific public record or class of records.  The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.

 Laws of 1987, ch. 403, § 5, p. 1549 (amending RCW 42.17.340(1)) (amendatory language emphasized).

                                         COMMON LAW DEFINITION OF PRIVACY

             Although the court inRosier discussed a general right of privacy, it applied the relatively narrow privacy test first set forth in Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978).  In theHoppe case,the court had adopted the common law definition of an invasion of privacy as set forth by the Restatement (Second) of Torts, section 652D:

             One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.

 Hearst Corp. v. Hoppe, 90 Wn.2d at 135-36.  While the Rosier court used this test in the final analysis, its discussion of the newly discovered general right of privacy caused the Legislature to eliminate any future confusion regarding the nature and scope of privacy arguments that could be asserted by agencies when withholding records from public inspection.  TheHoppe definition of privacy now has been incorporated into the statute:

                         A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person:  (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.  The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified  [[Orig. Op. Page 5]] in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

 Laws of 1987, ch. 403, § 2, p. 1547 (codified as RCW 42.17.255).

             Because this language so closely parallels the Hoppe court's test, we believe the following discussion to be helpful in determining the nature and scope of this right to privacy in public records:

             Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close personal friends.  Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget.  When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

 Hearst Corp. v. Hoppe, 90 Wn.2d at 136 (quoting Restatement (Second) of Torts § 652D comment (1977), at 386).

             In addition, the courts have dealt with a number of factual situations which provide additional guidance.  Files maintained for disability retirees are not covered by a right to privacy unless the illness is unpleasant, disgraceful, or humiliating.  Seattle Fire Fighters Union, Local 27 v. Hollister, 48 Wn. App. 129, 737 P.2d 1302,review denied, 108 Wn.2d 1033 (1987).  Personal and real property tax records of private citizens are not private, Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), nor are records revealing sustained allegations of misconduct by police officers,Cowles Pub'g Co. v. State Patrol, 109 Wn.2d 712, ___ P.2d ___ (1988).1/

             A private contractor's records revealing employees' salaries are not included in the right to privacy, Laborer's Int'l Local 374 v. Aberdeen, 31 Wn. App. 445, 642 P.2d 418,review denied, 97 Wn.2d 1024 (1982), nor are records revealing the identity of police officers who had written statements critical of the police chief,Columbian Pub'g  [[Orig. Op. Page 6]]Co. v. Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983).  The court first determines whether the record reveals the intimate details of one's personal and private life.  Even if the record would reveal such details, the court must then determine whether the public interest in the accountability of public agencies and their employees outweighs those privacy interests.  Cowles Pub'g Co. v. State Patrol, 109 Wn.2d at 726-27.

                                    REASON FOR THE REQUEST; "NEED TO KNOW"

             TheRosier court also created a new criterion for release of public records based solely upon the proposed use of the record.  Despite finding that records of power consumption by utility customers had only a "minimal" privacy interest, that such information was "fairly innocuous", and that reasonable persons would not be "highly offended" by its release the court held that theuse of such records for a "fishing expedition" by the police was highly offensive.  Rosier, 105 Wn.2d at 615.  The police were therefore required to articulate a specific suspicion of illegal conduct prior to gaining access to such records.

             In applying its new privacy analysis to its earlier decision inHearst Corp. v. Hoppe,supra, the Rosier court emphasized that the tax records were not sought by the newspaper foruse against the identified taxpayers.  The way a requester might use a record assumed new importance.

             Thus, followingRosier, agencies were required not only to determine whether the release of the information contained in the records was "highly offensive", but also to determine whether the proposed use of the record was "highly offensive", even where the information contained in the record was fairly innocuous.  It became mandatory that agencies somehow determine the requester's proposed use of the record.  Such an inquiry could discourage citizens seeking to uncover what they felt to be instances of misconduct by public agencies and their employees.

             The Legislature completely repudiated this new test that required agencies to make value judgments about the proposed use of the record.2/

             It amended RCW 42.17.270 so that it now reads:

              [[Orig. Op. Page 7]]

                         Public records shall be available for inspection and copying, and agencies shall, upon request for identifiable public records, make them promptly availble to any persons.  Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except to establish whether inspection and copying would violate RCW 42.17.260(5) or other statute which exempts or prohibits disclosure of specific information or records to certain persons.  Agency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency.  Agencies shall honor requests received by mail for identifiable public records unless exempted by provisions of this chapter.

 Laws of 1987, ch. 403, § 4, p. 1548 (amendatory language emphasized).

             Except in those relatively rare situations where a statute distinguishes among those persons entitled to receive information or records, agencies may notrequire requesters to identify the proposed use of the record.  Agencies are notprohibited from inquiring about the proposed use.3/

             Such information could be useful for agencies seeking to assist a requester in locating pertinent information or in modifying their procedures to anticipate future requests for similar information.  However, agencies may notrequire an explanation of the proposed use as a condition to access.  If the requester does not willingly provide the explanation, the agency must release the requested records.

             Against this background, we turn now to the analysis of your specific questions, which are repeated for ease of reference.

                                                                      ANALYSIS

 Question 1

             When applying the statutory privacy standard in RCW 42.17.255, may a public agency inquire into the purpose for which a record is requested to determine the legitimate concerns of the public in disclosure?

             This question assumes that an agency has received a request for a public record that is possible exempt under a statutory provision recognizing a right to privacy in the record.  The question also assumes the agency has determined that the disclosure of information about a person is "highly offensive to a reasonable person" under the first part of the two-part test set forth in RCW 42.17.255.

             Thus, our first question focuses on the application of the second part of the privacy test, which requires the agency to determine whether the information in the record is of legitimate concern to the public.  Essentially your ask whether the requester's proposed use can establish the required legitimate public interest and, if so, whether it is not essential to inquire as to that particularized use by the requester.

             In our opinion, such an inquiry is permitted, but the release of the record may not be conditioned upon whether the requester answers As we noted in the discussion above, the Legislature intended to eliminate any "chilling effect" that might be created if requesters were required to identify their proposed use.

            Certainly, if a requester is willing to discuss the proposed use of the record, that information may assist in deciding whether a legitimate public interest exists.  However, we do not believe that the particular use a single requester might make of the record can establish (or defeat) the required legitimate public interest.  The statute establishes an objective test.  It does not depend upon the subjective intentions of a particular individual.

             The issue is not whether a particular individual has a legitimate purpose for requesting a record.  Rather, it is whether there exists a legitimate public interest in disclosure.  Thus, inquiries to requesters should only address whether there is a legitimate public interest in the information that has been determined to be "highly offensive."

             It is now clear that if a record is available to one requester, it is available to all.  The new language in RCW 42.17.270 specifically prohibits distinguishing among individual requesters.  If agencies were to determine whether each  [[Orig. Op. Page 9]] individual could articulate a legitimate public interest, the result would necessarily be a series of ad hoc decisions.  This is precisely the result the Legislature sought to avoid.

             The test is whether the general public has a legitimate interest in the information.  The declaration of policy for chapter 42.17 RCW provides in part:

             That, mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.

 RCW 42.17.010(11).  It is clear that the drafters intended that any doubts should be resolved in favor of disclosure of information concerning the conduct of government.

             The courts have repeatedly emphasized the general policy in favor of disclosure.  In the most recent decision, the court discussed whether there was a legitimate public interest in police internal affairs files containing investigations which resulted in sustained findings of misconduct by police officers.

             The court must first decide whether the matters to be disclosed involve "personal privacy" as defined by § 652D to wit:  the intimate details of one's personal and private life.  If such personal and private details are involved then the court must decide whether the invasion caused by disclosure would be unreasonable.  If the off duty acts of a police officer bear upon his or her fitness to perform public duty or if the activities reported in the records involve the performance of a public duty, then the interest of the individual in "personal privacy" is to be given slight weight in the balancing test and the appropriate concern of the public as to the proper performance of public duty is to be given great weight.  In such situations privacy considerations are overwhelmed by public accountability.

 Cowles Pub'g Co. v. State Patrol, 109 Wn.2d 712, 726-27, ___ P.2d ___ (1988) (emphasis supplied).  If the requested record involves either the ability to perform public duty or the performance itself, an agency should give great weight to the public interest in disclosure.

             In summary, we believe agencies may inquire as to the purpose for which a record is requested.  If the requester provides such information, it may be taken into account in determining whether  [[Orig. Op. Page 10]] there is a legitimate public interest in disclosure.  However, that determination must be an objective decision regarding the interest of the general public, not the subjective intent of each person requesting disclosure.  The release of a public record may not be conditioned upon whether the requester will reveal the purpose of the request.

 Question 2

             May a public agency condition access to a public record containing a list of individuals on the requester's promise that the record will not be used for a commercial purpose, and may the agency require the requester to enter into a hold harmless agreement to that effect?

 The answer to your question involves analysis of RCW 42.17.260(5), which provides in part:

             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 . . .

 Also relevant to your question is the 1987 amendment to RCW 42.17.270, discussed above and repeated for ease of reference here:

             Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except to establish whether inspection and copying would violate RCW 42.17.260(5) or other statute which exempts or prohibits disclosure of specific information or records to certain persons.

 In RCW 42.17.260(5), the public disclosure act specifically prohibits providing access to lists of individuals when the list is to be used for commercial purposes.4/

             RCW 42.17.270 now  [[Orig. Op. Page 11]] also specifically permits inquiry as to the purpose of a request to ensure that inspection and copying will not violate that prohibition.

             Accordingly, an agency must ask an individual who is requesting access to a list of names whether the list will be used for commercial purposes.  It also seems to us that it would be permissible for an agency to require the person requesting access to the list to provide a written representation that the list will not be used for commercial purposes in violation of RCW 42.17.260(5).  We believe that such written representation could be in the form of an affidavit, as you suggested in your letter to us, if the agency provides the form to be signed and the services of a notary public, so that providing the affidavit does not become an unreasonable burden to obtaining the requested record.  In our opinion, requesting such a promise or representation is consistent with the prohibition contained in RCW 42.17.260(5).  The statute itself prohibits the agency from providing the list of names for commercial purposes, and we believe that requiring the requester to provide a written assurance to that effect does not add a burden to access that would be impermissible under the statute.

             The second part of your question, however, raises a more difficult issue.  You have asked whether a public agency may require an individual requesting access to a list of names to enter into a hold harmless agreement.  Under the agreement, the requester would hold the public agency harmless from any damages that may result as a consequence of violation of the prohibition contained in RCW 42.17.260(5).  Our research has not revealed any case either in Washington or in jurisdictions with similar public disclosure statutes addressing this or a related issue.

             There is no specific statutory authority for such action on the part of a public agency.  We believe that such a requirement goes beyond the limited barrier to access contemplated by the inquiry permitted under RCW 42.17.270.  We also believe it would be inconsistent with the purpose of the act to provide full access to public records and the obligation of public agencies to make public records promptly available to persons requesting them.  See RCW 42.17.010(11), [42.17.270].

              [[Orig. Op. Page 12]]

 Question 3

             What income information is included within the definition of "confidential income information" under RCW 84.40.020, and to what extent is such confidential income information exempt from disclosure under chapter 42.17 RCW?

             The issues raised in your third question were addressed in AGO 1980 No. 1, a copy of which is enclosed for your reference.  In that opinion, we considered both the definition of "confidential income data" and the scope of that exemption under the public disclosure act.  Our advice to you here is consistent with that set forth in AGO 1980 No. 1, with one addition:  we now conclude that information falling within the definition of "confidential income data" is exempt in its entirety from public disclosure.

 Definition of "confidential income data."

             We turn first to the two statutes relevant to the definition of "confidential income data."  RCW 84.40.020 provides in part as follows:

             All real property in this state subject to taxation shall be listed and assessed every year, with reference to its value on the first day of January of the year in which it is assessed.  Such listing and all supporting documents and records shall be open to public inspection during the regular office hours of the assessor's office:  Provided, That confidential income data is exempted from public inspection pursuant to RCW 42.17.310.

 RCW 42.17.310 provides in part:

                         (1) The following are exempt from public inspection and copying:

                        . . .

                         (c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would . . . (ii) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

             Reading these two statutes together, the Washington Supreme Court concluded that the exemption contained in RCW 84.40.020 is a "more specific and supplemental rule to the disclosure  [[Orig. Op. Page 13]] provisions of RCW 42.17 [chapter 42.17 RCW] [the public disclosure act]."  Hearst Corp. v. Hoppe, 90 Wn.2d 123, 139, 580 P.2d 246 (1978).  At the outset, we note that RCW 84.40.020 pertains only to real property.  Thus, the exemption contained therein necessarily applies only to "confidential income data" that is obtained in connection with the assessment of real property.

             Viewing RCW 84.40.020 with this limitation in mind, your question now asks for a definition of the phrase "confidential income data."  As noted in AGO 1980 No. 1, the phrase itself is not defined by statute.  Furthermore, the phrase is addressed only indirectly in one Washington case.  See Van Buren v. Miller, 22 Wn. App. 836, 592 P.2d 671, review denied, 92 Wn.2d 1021 (1979).  There is, however, a similar exemption under the federal Freedom of Information Act, which has been judicially construed.  5 U.S.C. § 552(b)(4) exempts from disclosure "commercial or financial information obtained from a person [which is] privileged or confidential."  Cases construing this exemption have held that information is "confidential if (1) it is of a type not customarily released to the public and (2) disclosure thereof is either likely to impair the ability of government to obtain necessary information in the future or to cause substantial harm to the competitive position of the provider of the information.  National Parks & Conserv. Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974);Vereinigte Vaubeschlagfabriken Gretsch & Co. v. United States Treasury Dep't, 435 F. Supp. 1212 (D. D.C. 1977) (cited in AGO 1980 No. 1, at 11).  Similarly, the term "confidential" in defined as "communicated, conveyed, acted on, or praticed in confidence:  known only to a limited few:  not publicly disseminated . .. ."  Webster's Third New International Dictionary 476 (1981).

             Relying on these definitions of "confidential," the cited federal precedents, and the common definitions of the words "income" and "data", AGO 1980 No. 1 concluded that the term "confidential income date" contained in RCW 84.40.020 should be taken to mean "detailed information pertaining to gains, usually measured in money, deriving from capital or labor or both, of a type not customarily made public . . ."  This would include "information pertaining to gains from transactions in capital assets, commercial revenues or receipts except receipt or return or capital, and value received by an individual."  Noting the additional language set forth in RCW 42.17.310(1)(c)(ii), the opinion also included the requirement that the disclosure either (1) be highly offensive to a reasonable person and not of legitimate concern to the public (theHoppe definition of privacy), or (2) result in unfair competitive disadvantage to the taxpayer, in order for the exemption to come into play.  And, as stated earlier, the information must pertain to real property.  AGO 1980 No. 1, at 12.

              [[Orig. Op. Page 14]]

           We adhere to this definition of "confidential income data," as there has been no intervening change in the law that would merit a different interpretation.  Accordingly, we now address the second part of your third question, which pertains to the "scope" of the exemption afforded by RCW 84.40.020.

 Scope of the exemption.

             Once it is determined that certain information falls within the definition of "confidential income date," such information is entirely exempt from disclosure under the public disclosure act.  This necessarily follows from RCW 42.17.310(2), which provides in part:

             Except for information described in subsection (1)(c)(i) of this section and confidential income date exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. . . .

 (Emphasis supplied.)  The underlined portion of the statute was added by the Legislature in 1985.  Laws of 1985, ch. 414, § 8, p. 1819.  It indicates a clear intent to depart from the usual rule governing the statutory exemptions from public disclosure.  As the above statute indicates, such exemptions generally have only limited applicability; if information that would violate personal privacy or vital governmental interests can be deleted, the remainder of the record must be disclosed.  By adding the underlined language to the statute, however, the Legislature intended to make the exemption for "confidential income data" referred to in RCW 84.40.020 a much broader exemption.  Such confidential income data is now entirely exempt from public disclosure.5/

              [[Orig. Op. Page 15]]

            In summary, then, we answer your third question as follows.  Income information that has been communicated in confidence in connection with the assessment of real property pursuant to chapter 84.40 RCW, that has not been publicly disseminated by the taxpayer or made known to more than a limited number of individuals, and that meets the requirements of AGO 1980 No. 1 as set forth above, is included within the definition of "confidential income data" contained in the exemption of RCW 84.40.020.  Information that falls within this definition is exempt from disclosure if it meets one of the two standards contained in the last phrase of RCW 42.17.310(1)(c).  The disclosure would have to violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.  If the information in question meets these requirements, it is then entirely exempt from disclosure, and is not subject to the additional restrictions set forth in RCW 42.17.310(2).

             We trust the foregoing will be of assistance to you.

 Very truly yours,
 KENNETH O. EIKENBERRY
Attorney General

SALLY P. SAVAGE
Senior Assistant Attorney General

GREGORY J. TRAUTMAN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/The court did find, however, that nondisclosure of the identities of the officers was "essential to effective law enforcement."  See RCW 42.17.310(1)(d).

 2/The Legislature itself has made such judgments.  It has required law enforcement agencies to have a particularized suspicion of illegal activity before gaining access to power consumption records.  Laws of 1987, ch. 403, § 6, p. 1549.  It has also exempted from disclosure the residential addresses and residential phone numbers of utility customers.  Laws of 1987, ch. 404, § 1, p. 1550.

 3/Laws of 1987, ch. 403 was proposed to the Legislature at the request of this office.  The original draft of section 4 prohibited agencies from making such an inquiry.  A coalition of representatives from government, the print and electronic media, and a variety of interested citizen groups that assisted in drafting the proposed legislation agreed that the language should permit agencies to inquire about the proposed use, but should not condition release of records on whether the requester was willing to discuss the proposed use.

 4/The courts have not yet had occasion to interpret RCW 42.17.260(5).  This office has issued four opinions that provide some guidance.  Synthesized, those opinions state that agencies shall not provide a list of the names of natural persons (not including corporations, associations, etc.) when the list was created by the agency, and (a) the requester is engaged in a commercial (profit-expecting) activity, (b) the requester intends to contact or in some way personally affect the listed individuals, and (c) the purpose of the contact is to facilitate the commercial activity.  AGLO 1973 No. 113; AGLO 1975 No. 38; AGO 1975 No. 15; AGO 1980 No. 1.

 5/We note that RCW 84.36.389 provides for nondisclosure of "confidential income data" that is obtained in the course of auditing certain claims for real property tax exemptions.  The relevant parts of this statute provide:

                         (2) The department [of revenue] may conduct such audits of the administration of RCW 84.36.381 through 84.36.389 and the claims for exemption filed thereunder as it considers necessary. . . .

                         (3) Any information or fact concerning confidential income date obtained by the assessor or the department, or their agents or employees, under subsection (2) of this section shall be used only to administer RCW 84.36.381 through 84.36.389.  Notwithstanding any provision of law to the contrary, absent written consent by the person about whom the information or facts have been obtained, the confidential income data shall not be disclosed by the assessor or the assessor's agents or employees to anyone other than the department or the department's agents or employees nor by the department or the department's agents or employees to anyone other than the assessor or the assessor's agents or employees except in a judicial proceeding pertaining to the taxpayer's entitlement to the tax exemption under RCW 84.36.381 through 84.36.389.  Any violation of this subsection is a misdemeanor.

 The term "confidential income data" again is not defined.  We conclude that the term should be interpreted as set forth in AGO 1980 No. 1 and in our analysis above.  We further conclude that, once it is determined that the information in question is "confidential income data," such information may not be disclosed except as provided for in RCW 84.36.389.

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