2.1 Introduction – General Information on Exemptions from Disclosure
“Exemption from disclosure” or “exemption” or “exempt” are the terms used to describe the laws allowing an agency to withhold a public record or part of one. The PRA and other statutes outside the PRA contain hundreds of very specific exemptions from disclosure and dozens of court cases interpret them. A full treatment of all exemptions is beyond the scope of this Internet Manual. (For a more in-depth treatment of the exemptions, including a table listing all of them, see the Washington State Bar Association’s Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase.) Instead, this chapter provides general guidance on exemptions and summarizes many of the ones most frequently encountered by requestors and agencies.
A. Exemptions In General
Given the pro-disclosure approach of the PRA, the law requires an exemption from disclosure to be narrowly construed in favor of disclosure. RCW 42.56.030. An exemption from disclosure must specifically exempt a record or part of a record from disclosure. RCW 42.56.070(1). An exemption will not be inferred or presumed. Progressive Animal Welfare Soc'y. v. Univ. of Wash., 125 Wn.2d 243, 262, 884 P.2d 592 (1994) ("PAWS II"). A record or portion of a record must fit squarely within a specific statutory exemption in order to be withheld.
An agency cannot define the scope of a statutory exemption through rule making or policy. Servais v. Port of Bellingham, 127 Wn.2d 820, 834, 904 P.2d 1124 (1995). An agency agreement or promise not to disclose a record cannot make a disclosable record exempt from disclosure. RCW 42.56.070(1). Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 40, 769 P.2d 283 (1989).
Exemptions are "permissive rather than mandatory." 1980 Att’y Gen. Op. No. 1. Therefore, an agency has the discretion to disclose an exempt record. However, in contrast to an "exemption" it may waive, an agency cannot provide a record if a statute makes it "confidential" or otherwise prohibits disclosure. See RCW 42.56.510. For example, the Health Care Information Act generally prohibits the disclosure of medical information without the patient's consent. RCW 70.02.020(1). If a statute classifies information as "confidential" or otherwise prohibits disclosure, an agency has no discretion to release a record or the confidential portion of it. 1986 Att’y Gen. Op. No. 7.
See generally WAC 44-14-06002(1) (describing exemptions in general).
B. No "Privacy" exemption
There is no general "privacy" exemption. 1988 Att’y Gen. Op. No.12. Since "privacy" is not a stand-alone exemption, an agency cannot claim RCW 42.56.050 as an exemption. 1988 Att’y Gen. Op. No.12. However, a few exemptions incorporate privacy as one of the elements of the exemption. For example, personal information in agency employee files is exempt to the extent that disclosure would violate the employee's right to "privacy." RCW 42.56.230(2). "Privacy" is then one of the elements, in addition to the others in RCW 42.56.230(2), that an agency or a third party resisting disclosure must prove.
A violation of a person’s "privacy" would occur under RCW 42.56.050 when the disclosure of information "(1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." This two-part test requires the person seeking to prevent disclosure to prove both elements. King County v. Sheehan, 114 Wn. App. 325, 344, 57 P.3d 307 (2002).
See generally Chapter 13, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase )
2.2 Specific Exemptions from Disclosure
A. Personal Information
1. Student, Institutional, and Welfare Records
Statutory Provision: Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients is exempt from disclosure. RCW 42.56.230(1)
This exemption covers “personal information” in the files of public assistance or public health clients, students, and residents of public institutions. See Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 618 P.2d 76 (1980). In Oliver, a patient was allowed copies of her own medical records.
Case example: A private insurance claim investigator requests a roster of participants in a city summer jobs program for at-risk youth, who come from families receiving public assistance, and general information on the program.
Resolution: The identifying information of the participants may be redacted from the roster. However, the general information on the program (handbooks, job descriptions, etc.) must be provided.
There are statutory exceptions to this exemption: (1) the public may have access to a jail register of jail inmates, RCW 70.48.100; (2) criminal history record information of past convictions and information pertaining to an incident for which a person is currently being processed in the criminal justice system, chapter 10.97 RCW; and (3) community protection statutes including RCW 4.24.550 which permit release of information about dangerous offenders that is needed to protect the public or persons in the criminal justice system.
2. Public Employee Records
See generally Chapters 11 and 13, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase )
Statutory Provisions: Personal information in files maintained for employees, appointees, or elected officials of any public agency [are exempt from disclosure] to the extent that disclosure would violate their right to privacy. RCW 42.56.230(2).
“Privacy” as used in an exemption means] 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. RCW 42.56.050.
Washington courts have not defined precisely what information in personnel records violates a right of privacy, but some cases have discussed the issue. See Tiberino v. Spokane County, 103 Wn. App. 680, 691, 13 P.3d 1104 (2000) (content of particular emails was personal and unrelated to government operations so content was exempt but number of emails and time spent was of public concern); Yakima Newspapers, Inc. v. City of Yakima, 77 Wn. App. 319, 890 P.2d 544 (1995) (information is exempt from disclosure as personal if it concerns intimate details of employee's personal and private life not of legitimate concern to the public); Washington State Human Rights Comm'n v. City of Seattle, 25 Wn. App. 364, 607 P.2d 332 (1980) (personal and confidential information in employment application about the applicant's life and past activities are matters of personal privacy).
Other statutes exempt particular items potentially in a public employee’s personnel files such as applications for public employment, résumés, and related material, and home and family information of employees RCW 42.56.250(2) and (3).
The test is a two-part test. Information may be highly offensive, but if it is of legitimate concern to the public, it is not exempt. Information may not be of legitimate concern to the public, but if it is not highly offensive, it is not exempt.
Courts have held that an employee's performance evaluations with no discussion of specific incidents of misconduct are exempt because they are both highly offensive and of no legitimate concern to the public. Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993); Brown v. Seattle Public Schools, 71 Wn. App. 613, 860 P.2d 1059 (1993). In Dawson v. Daly, the court held that there was no legitimate public concern in disclosure of the performance evaluations of a deputy prosecutor to a potential defense expert witness because it would impair employee morale if employees thought that their evaluations would be made public to anyone who requested them and because supervisors would be reluctant to write candid evaluations of their subordinates. The requestor in Brown was a PTA president who sought access to an elementary school principal's performance evaluations. The court upheld denial of the request, citing Dawson v. Daly.
An appellate court ruled that the performance evaluation of a city manager, however, was not exempt because it was of legitimate concern to the public. Spokane Research & Defense Fund v. City of Spokane, 99 Wn. App. 452, 994 P.2d 267 (2000). Records describing specific instances of misconduct to be of legitimate interest to the public, despite the embarrassing nature of the disclosure. See Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990) (records of teacher certificate revocation records are of legitimate public interest); Columbian Publishing Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983) (the investigative agency exemption did not apply to shield the job performance investigation of police chief). The question is whether false allegations are of “legitimate interest to the public” and therefore disclosable. One case holds that “patently false” allegations of sexual misconduct against teachers are exempt, but “unsubstantiated” allegations are disclosable because of the important public interest in those accusations. Bellevue John Does v. Bellevue School Dist., 129 Wn. App. 832, 120 P.3d 616 (2005), review granted (January 3, 2006).
This exemption is not limited to an actual employee “personnel file” but rather applies to employee information in an agency computer system. See Tacoma Pub. Library v. Woessner, 90 Wn. App. 205, 216, 951 P.2d 357, review granted and remanded, 136 Wn.2d 1030, 972 P.2d 101, amended opinion, 972 P.2d 932 (1998). The exemption also includes records in files for current and former employees, whether held by an employing agency or other agency, such as a retirement system. Seattle Fire Fighters Union, Local No. 27, v. Hollister, 48 Wn. App. 129, 737 P.2d 1302, review denied, 18 Wn.2d 1033 (1987).
3. Taxpayer Information
Statutory Provision: Information required of any taxpayer in connection with the assessment or collection of any tax is exempt from disclosure if the disclosure would be prohibited pursuant to RCW 82.32.330 or would violate any taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer. RCW 42.56.230(3).
See Van Buren v. Miller, 22 Wn. App. 836, 592 P.2d 671, review denied, 92 Wn.2d 1021 (1979) (information relied upon by the assessor to make valuation is not private); Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978).
4. Banking Information
Statutory Provision: Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers [are exempt from disclosure], except when disclosure is expressly required by or governed by other law. RCW 42.56.230(4).
This exemption is designed to limit the risk of identity theft and protects account numbers that can be used to receive funds, benefits or payments.
B. Investigative Information
See generally Chapter 8, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase )
1. Investigative Records
Statutory Provision: Specific intelligence information and specific investigative records, compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy [are exempt from disclosure]. RCW 42.56.240(1).
"Specific . . . investigative records" are the result of an investigation focusing on a particular person, Laborers Int'l Union of North America, Local No. 374 v. City of Aberdeen, 31 Wn. App. 445, 642 P.2d 418, review denied, 97 Wn.2d 1024 (1982), or an investigation to ferret out criminal activity or to shed light on specific misconduct. Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993); Columbian Publishing v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983). If a law enforcement agency maintains reports as part of a routine administrative procedure, not as the result of a specific complaint or allegation of misconduct, the reports are not investigative reports within the terms of this exemption. For example, "Use of Force Administrative Reports" prepared by police whenever there is contact between a K-9 unit dog and a person were held not within the investigative information exemption. Cowles Publishing v. City of Spokane, 69 Wn. App. 678, 849 P.2d 1271, review denied, 122 Wn.2d 1013 (1993).
"Investigative, law enforcement, and penology agencies" are agencies having authority to investigate and penalize, such as the police, the police internal affairs investigation unit, the Public Disclosure Commission, medical disciplinary boards, or a local health department. An investigative agency which is not acting in its investigative capacity may exempt only those records made in its investigative function. Columbian Publishing Co. v. City of Vancouver, 36 Wash. App. 25, 671 P.2d 280 (1983) (a general inquiry into agency personnel matters is not an "investigation" as contemplated by the Public Disclosure Act, even if it's performed by law enforcement officers). See also Prison Legal News, Inc. v. Dep’t of Corrections, 154 Wn.2d 628, 637-40, 115 P.3d 316 (2005) (discussing “law enforcement” element of exemption).
The contents of an open, ongoing investigation are generally exempt from disclosure because premature disclosure could jeopardize the investigation. Newman v. King County, 133 Wn.2d 565, 947 P.2d 712 (1997); Ashley v. Washington State Public Disclosure Comm'n, 16 Wn. App. 830, 650 P.2d 1156, review denied, 89 Wn.2d 1010 (1977). Once the investigation is completed, the records can be made available. Hearst v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). However, an agency may withhold specific records of completed investigations if their disclosure would jeopardize witnesses or discourage potential sources of information from coming forward in the future. Cowles Publishing Co. v. State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988); Tacoma News, Inc. v. Tacoma-Pierce County Health Dep't, 55 Wn. App. 515, 778 P.2d 1066 (1989), review denied, 113 Wn.2d 1037 (1990).
The names of complainants, witnesses and officers contained in police Internal Investigation Unit (IIU) files of completed investigations of sustained complaints are exempt from disclosure because the IIU process is vital to law enforcement and officers would be reluctant to be candid if they thought their identities or that of other officers would be disclosed. The agency may disclose the substance of the files. Cowles Publishing v. State Patrol, 109 Wn.2d 712, 748 P.2d 597 (1988). When the identity of the officer who was the subject of the investigation is well known through other sources, exemption of the name is not essential to effective law enforcement. Ames v. City of Fircrest, 71 Wn. App. 284, 857 P.2d 1083 (1993). But see Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990) (in dicta, the court encouraged a narrow view of what falls within law enforcement purposes, holding that revocation of teacher certificates was not exempt). The Cowles court held that the redaction of officers' names in the IIU files was not necessary to protect their privacy.
2. Identity Of Complainants, Witnesses And Victims
Statutory Provision: Information revealing the identity of witness to or victims of a crime or a person who files a complaint with an investigative, law enforcement or penology agency is exempt if disclosure would endanger any person's life, physical safety, or property. If at the time a complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. However, all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath. RCW 42.56.240(2).
An agency need not verify the accuracy of the alleged endangerment, but the desire for nondisclosure must be based upon risk of harm rather than mere embarrassment at the prospect of disclosure. Agencies should inquire at an early stage of the complaint process to preserve confidentiality.
3. Sex Offender Investigative Reports
Statutory Provision: Any records of investigative reports prepared by any state, county, municipal, or other law enforcement agency pertaining to sex offenses contained in chapter 9A.44 RCW or sexually violent offenses as defined in RCW 71.09.020, which have been transferred to the Washington association of sheriffs and police chiefs for permanent electronic retention and retrieval pursuant to RCW 40.14.070(2)(b) [are exempt from disclosure]. RCW 42.56.240(3).
While the underlying reports would be exempt, some information reported about offenders may be disclosed that is relevant and necessary under community protection statutes such as RCW 4.24.550.
4. Concealed Pistol Licenses
Statutory Provision: License applications under RCW 9.41.070 [are exempt from disclosure]; copies of license applications or information on the applications may be released to law enforcement or corrections agencies. RCW 42.56.240(4).
5. Child Victim of Sexual Assault
Statutory Provision: Information revealing the identity of child victims of sexual assault who are under age eighteen [is exempt from disclosure]. Identifying information means the child victim's name, address, location, photograph, and in cases in which the child victim is a relative or stepchild of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. RCW 42.56.240(5).
This exemption is thoroughly explored in Koenig v. City of Des Moines, 158 Wn.2d 173, 142 P.3d 162 (2006). The court held that this statute requires disclosure of this information with redaction only of the specified identifiers, even if the requestor knows the identity of the child victim and requests the record by the victim’s name.
C. Employment and Licensing
1. Test and Exam Questions
Statutory Provision: Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination [are exempt from disclosure].RCW 42.56.240(1).
This information is exempt because disclosure would give an undue advantage to applicants for licenses or jobs.
2. Applicants For Public Employment
Statutory Provision: All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant [are exempt from disclosure].RCW 42.56.240(2).
See Beltran v. Dep't Social & Health Services, 98 Wn. App. 245, 989 P.2d 604 (1999), review granted, 140 Wn.2d 1021, 10 P.3d 405, appeal dismissed (2000).
If an applicant is hired, many agencies do not consider that this exemption applies to these records. Instead, the agencies look to exemptions such as RCW 42.56.230(2) and RCW 42.56.250(3) to decide whether or not to disclose personal information from these records.
3. Public Employees’ Home Addresses, Phone Numbers, etc.
Statutory Provision: The residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, social security numbers, and emergency contact information of employees or volunteers of a public agency, and the names, dates of birth, residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, social security numbers, and emergency contact information of dependents of employees or volunteers of a public agency that are held by any public agency in personnel records, public employment related records, or volunteer rosters, or are included in any mailing list of employees or volunteers of any public agency [are exempt from disclosure]. For purposes of this subsection, "employees" includes independent provider home care workers as defined in RCW 74.39A.240. RCW 42.56.250(3).
This section exempts home addresses and telephone numbers of employees and volunteers, personal cell phone numbers and email addresses, social security numbers, emergency contact information, and similar information about their dependents. Information about individual home health care workers are treated the same as employees only under this subsection.
4. Human Rights Commission Complaints and Investigative Records
Statutory Provisions: Information [is exempt from disclosure] that identifies a person who, while an agency employee: (a) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in connection with a possible unfair practice under chapter 49.60 RCW against the person; and (b) requests his or her identity or any identifying information not be disclosed. RCW 42.56.250(4).
This exemption, like the earlier investigative witness exemption, requires an employee to ask that their name be withheld but does not require a showing of risk of harm.
Investigative records compiled by an employing agency conducting a current investigation of a possible unfair practice underchapter 49.60 RCWor of a possible violation of other federal, state, or local laws prohibiting discrimination in employment [are exempt from disclosure]. RCW 42.56.250(5).
Records of investigations by employers into unfair labor practices or discrimination claims are exempt while those investigations are in process. RCW 42.56.250(5).
5. State Ferry Employee Salary and Benefit Survey Information
Statutory Provision: Except as provided in RCW 47.64.220, salary and employee benefit information collected under RCW 47.64.220(1) and described in RCW 47.64.220(2) [is exempt from disclosure]. RCW 42.56.250(6).
As a general rule, salary and benefit information for public employees is held to be public.
D. Real Estate Appraisals
Statutory Provision: Except as provided by chapter 8.26 RCW, the contents of real estate appraisals made for or by an agency relative to the acquisition or sale of property are exempt from disclosure until all of the property has been acquired or has been sold or three years from the date of appraisal, whichever occurs first. RCW 42.56.260.
E. Research Data And Intellectual Property
See generally Chapter 9, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase )
1. Statutory Provision: Valuable formulae, designs, drawings, and research data obtained by an agency within five years of the request for disclosure are exempt from disclosure when disclosure would produce private gain and public loss. RCW 42.56.270(1).
The purpose of this exemption is to prevent the taking of potentially valuable intellectual property held by an agency. Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 254-55, 884 P.2d 592 (1994). Valuable formula or research data may include material in an unfunded grant proposal, including raw data and guiding hypotheses that structure data (id.), and a cash flow analysis prepared by a consultant to assist an agency to negotiate lease rates for potential developers of agency properties. Servais v. Port of Bellingham, 127 Wn.2d 820, 830, 904 P.2d 1124 (1995). In Servais, the court held the cash flow analysis to be exempt because private developers would benefit by insight into the port's negotiating position to the detriment of the public if the record was disclosed. Research data, which is not limited to scientific or technical information, means facts and information collected for a specific purpose and derived from close study or from scholarly or scientific investigation or inquiry, if the disclosure would result in private gain and public loss. See also Evergreen Freedom Fdn. v. Locke, 127 Wn. App. 243, 110 P.3d 858 (2005) (discussing exemption).
In addition to the protections of this exemption, intellectual and proprietary information may also be covered by the Washington Trade Secrets Act, chapter 19.108 RCW. Servais v. Port of Bellingham, 127 Wn.2d 820, 904 P.2d 1124 (1995).
2. Financial and Proprietary Information Involved in Miscellaneous Government Programs
RCW 42.56.270(2) – (17) exempts from disclosure:
(2) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for (a) a ferry system construction or repair contract as required by RCW 47.60.680 through RCW 47.60.750 or (b) highway construction or improvement as required by RCW 47.28.070;
(3) Financial and commercial information and records supplied by private persons pertaining to export services provided under chapters 43.163 and 53.31 RCW, and by persons pertaining to export projects under RCW 43.23.035;
(4) Financial and commercial information and records supplied by businesses or individuals during application for loans or program services provided by chapters 15.110, 43.163, 43.160, 43.330, and 43.168 RCW, or during application for economic development loans or program services provided by any local agency;
(5) Financial information, business plans, examination reports, and any information produced or obtained in evaluating or examining a business and industrial development corporation organized or seeking certification under chapter 31.24 RCW;
(6) Financial and commercial information supplied to the state investment board by any person when the information relates to the investment of public trust or retirement funds and when disclosure would result in loss to such funds or in private loss to the providers of this information;
(7) Financial and valuable trade information under RCW 51.36.120;
(8) Financial, commercial, operations, and technical and research information and data submitted to or obtained by the clean Washington center in applications for, or delivery of, program services under chapter 70.95H RCW;
(9) Financial and commercial information requested by the public stadium authority from any person or organization that leases or uses the stadium and exhibition center as defined in RCW 36.102.010;
(10)(a) Financial information, including but not limited to account numbers and values, and other identification numbers supplied by or on behalf of a person, firm, corporation, limited liability company, partnership, or other entity related to an application for a horse racing license submitted pursuant to RCW 67.16.260(1)(b), liquor license, gambling license, or lottery retail license; (b) Financial or proprietary information supplied to the liquor control board including the amount of beer or wine sold by a domestic winery, brewery, microbrewery, or certificate of approval holder under RCW 66.24.206(1) or 66.24.270(2)(a) and including the amount of beer or wine purchased by a retail licensee in connection with a retail licensee's obligation under RCW 66.24.210 or 66.24.290, for receipt of shipments of beer or wine.
(11) Proprietary data, trade secrets, or other information that relates to: (a) A vendor's unique methods of conducting business; (b) data unique to the product or services of the vendor; or (c) determining prices or rates to be charged for services, submitted by any vendor to the department of social and health services for purposes of the development, acquisition, or implementation of state purchased health care as defined in RCW 41.05.011;
(12)(a) When supplied to and in the records of the department of community, trade, and economic development: (i) Financial and proprietary information collected from any person and provided to the department of community, trade, and economic development pursuant to RCW 43.330.050(8) and 43.330.080 (4); and (ii) Financial or proprietary information collected from any person and provided to the department of community, trade, and economic development or the office of the governor in connection with the siting, recruitment, expansion, retention, or relocation of that person's business and until a siting decision is made, identifying information of any person supplying information under this subsection and the locations being considered for siting, relocation, or expansion of a business; (b) When developed by the department of community, trade, and economic development based on information as described in (a)(i) of this subsection, any work product is not exempt from disclosure; (c) For the purposes of this subsection, "siting decision" means the decision to acquire or not to acquire a site; (d) If there is no written contact for a period of sixty days to the department of community, trade, and economic development from a person connected with siting, recruitment, expansion, retention, or relocation of that person's business, information described in (a)(ii) of this subsection will be available to the public under this chapter;
(13) Financial and proprietary information submitted to or obtained by the department of ecology or the authority created under chapter 70.95N RCW to implement chapter 70.95N RCW;
(14) Financial, commercial, operations, and technical and research information and data submitted to or obtained by the life sciences discovery fund authority in applications for, or delivery of, grants under chapter 43.350 RCW, to the extent that such information, if revealed, would reasonably be expected to result in private loss to the providers of this information;
(15) Financial and commercial information provided as evidence to the department of licensing as required by RCW 19.112.110 or 19.112.120, except information disclosed in aggregate form that does not permit the identification of information related to individual fuel licensees;
(16) Any production records, mineral assessments, and trade secrets submitted by a permit holder, mine operator, or landowner to the department of natural resources under RCW 78.44.085; and
(17)(a) Farm plans developed by conservation districts, unless permission to release the farm plan is granted by the landowner or operator who requested the plan, or the farm plan is used for the application or issuance of a permit. (b) Farm plans developed under chapter 90.48 RCW and not under the federal clean water act, 33 U.S.C. Sec. 1251 are subject to RCW 42.56.610 and 90.64.190
3. Deliberative Process (Preliminary Drafts, Notes, Recommendations, Intra-Agency Memoranda)
Statutory Provision: Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended [are exempt from disclosure] except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action. RCW 42.56.280.
See generally Section 7.3(4), Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase); WAC 44-14-06002(4).
Preliminary drafts or recommendations may be withheld by an agency but only if they pertain to the agency's deliberative process and show the exchange of opinions within an agency before it reaches a decision or takes an action. The purpose of this exemption severely limits its scope. Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 256, 884 P.2d 592 (1994); Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978). Its purpose is to "protect the give and take of deliberations necessary to formulation of agency policy." Hearst Corp. v. Hoppe, at 123; Progressive Animal Welfare Soc'y v. University of Wash., at 256.
The test to determine whether a record is covered by this exemption has been summarized by the Supreme Court as follows:
In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not raw factual data on which a decision is based. Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d at 256. It is not, however, required that documents be prepared by subordinates to be exempt. ACLU v. City of Seattle, 121 Wn. App. 544, 552, 89 P.3d 295 (2004).
The exemption applies only to documents that are part of the deliberative or policy-making process; records about implementing policy are not covered. Cowles Publishing v. City of Spokane, 69 Wn. App. 678, 849 P.2d 1271 (1993), review denied, 122 Wn.2d 1013 (1993). For this reason, inter-agency (as opposed to intra-agency) discussions probably are not covered by this exemption. Columbian Publishing Co. v. City of Vancouver, 36 Wash. App. 25, 671 P.2d 280 (1983).
Matters that are factual, or that are assumed to be factual for discussion purposes, must be disclosed. Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 791 P.2d 526 (1990); Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978) (description of a taxpayer's home by a field assessor treated as fact by agency appraisers). Thus, unless disclosure would reveal or expose the deliberative process, as distinct from the facts used to make a decision, the exemption does not apply. Hearst Corp. v. Hoppe, at 133. Moreover, once the policies or recommendations are implemented, those recommendations, drafts and opinions cease to be protected under this exemption. Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 257, 884 P.2d 592 (1994). An evaluation of a real property site requested by a city attorney was exempt from disclosure under the deliberative process exemption where it was cited as the basis for a final action. Overlake Fund v. City of Bellevue, 60 Wn. App. 787, 810 P.2d 507 (1991), appeal after remand, 70 Wn. App. 789, 855 P.2d 706, review denied, 123 Wn.2d 1009 (1994) (study ultimately withheld on other grounds). Subjective evaluations are not exempt under this exemption if they are treated as raw factual data and not subject to further deliberation and consideration. Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d at 256-57; Hearst Corp. v. Hoppe, 90 Wn.2d at 134.
Case example: A public agency conducts an internal review of a specific problem. A report is prepared consisting of an overview of the problem, information collected or reviewed, and recommendations for policy changes.
Resolution: The recommendations for policy changes are the only parts of the report likely to be exempt, unless the agency can show that the remainder of the report contains information that is inextricably intertwined with the recommendation. The agency must show that release of the factual or discussion portions would be the same as releasing the recommendations. This situation seldom exists and, for that reason, an agency must usually disclose parts of predecisional memos before it makes a final decision.
4. Information Protected In Litigation
Statutory Provisions: Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts [are exempt from disclosure]. RCW 42.56.290.
See generally Chapter 10, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase ).
A "controversy" covered by this exemption includes threatened, actual, or completed litigation. Dawson v. Daly, 120 Wn.2d 782, 791, 845 P.2d 995 (1993).
If an agency is a party to a controversy, the agency may withhold records that normally would be privileged under litigation discovery rules (commonly called the “work product” doctrine). A document is work product if an attorney prepares it in confidence and in anticipation of litigation or it is prepared at the attorney’s request and if the requester could obtain about the same information by other means. For example, a study of the economic viability of hotels of various sizes, commissioned by a city attorney's office to determine the city's potential liability for a constitutional takings claim qualified as work product and was insulated from disclosure. Overlake Fund v. City of Bellevue, 70 Wn. App. 789, 855 P.2d 706 (1993), review denied, 123 Wn.2d 1009 (1994). See generallyPublic Records: The Attorney-Client Privilege and Work Product Doctrine – Guidance on Recurring Issues (Washington State Attorney General’s Office) (Dec. 1, 2004)
The Supreme Court in Hangartner v. City of Seattle, 151 Wn.2d 439, 90 P.3d 26 (2004) ruled that RCW 5.60.060(2), the statute codifying the common law attorney-client privilege, is an “other statute” exemption under the PRA in RCW 42.56.070(1). Accordingly, records or portions of records covered by the attorney-client privilege are exempt from disclosure. See generally WAC 44-14-06002(3)
5. Archaeological Sites
Statutory Provisions: Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites are exempt from disclosure under this chapter. RCW 42.56.300(1).
Records, maps, and other information, acquired during watershed analysis pursuant to the forests and fish report under RCW 76.09.370, that identify the location of archaeological sites, historic sites, artifacts, or the sites of traditional religious, ceremonial, or social uses and activities of affected Indian tribes, are exempt from disclosure under this chapter in order to prevent the looting or depredation of such sites. RCW 42.56.300(2).
6. Library Records
Statutory Provision: Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, that discloses or could be used to disclose the identity of a library user is exempt from disclosure under this chapter. RCW 42.56.310.
7. Educational Information
RCW 42.56.320 exempts from disclosure:
(1) Financial disclosures filed by private vocational schools under chapters 28B.85 and 28C.10 RCW;
(2) Financial and commercial information supplied by or on behalf of a person, firm, corporation, or entity under chapter 28B.95 RCW relating to the purchase or sale of tuition units and contracts for the purchase of multiple tuition units;
(3) Individually identifiable information received by the work force training and education coordinating board for research or evaluation purposes; and
(4) Except for public records as defined in RCW 40.14.040, any records or documents obtained by a state college, university, library, or archive through or concerning any gift, grant, conveyance, bequest, or devise, the terms of which restrict or regulate public access to those records or documents.
8. Public Utilities and Transportation
RCW 42.56.330 exempts from disclosure:
(1) Records filed with the utilities and transportation commission or attorney general under RCW 80.04.095 that a court has determined are confidential under RCW 80.04.095;
(2) The residential addresses and residential telephone numbers of the customers of a public utility contained in the records or lists held by the public utility of which they are customers, except that this information may be released to the division of child support or the agency or firm providing child support enforcement for another state under Title IV-D of the federal social security act, for the establishment, enforcement, or modification of a support order;
(3) The names, residential addresses, residential telephone numbers, and other individually identifiable records held by an agency in relation to a vanpool, carpool, or other ride-sharing program or service; however, these records may be disclosed to other persons who apply for ride-matching services and who need that information in order to identify potential riders or drivers with whom to share rides;
(4) The personally identifying information of current or former participants or applicants in a paratransit or other transit service operated for the benefit of persons with disabilities or elderly persons;
(5) The personally identifying information of persons who acquire and use transit passes and other fare payment media including, but not limited to, stored value smart cards and magnetic strip cards, except that an agency may disclose this information to a person, employer, educational institution, or other entity that is responsible, in whole or in part, for payment of the cost of acquiring or using a transit pass or other fare payment media, or to the news media when reporting on public transportation or public safety. This information may also be disclosed at the agency's discretion to governmental agencies or groups concerned with public transportation or public safety;
(6) Records of any person that belong to a public utility district or a municipally owned electrical utility, unless the law enforcement authority provides the public utility district or municipally owned electrical utility with a written statement in which the authority states that it suspects that the particular person to whom the records pertain has committed a crime and the authority has a reasonable belief that the records could determine or help determine whether the suspicion might be true. Information obtained in violation of this subsection is inadmissible in any criminal proceeding;
This exemption only applies to a specific requester, namely, a law enforcement agency. It was passed in response to the decision in In re Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986), which limited the ability of law enforcement to engage in "fishing expeditions" through utility records while investigating marijuana growing operations. A telephone request is not sufficient. State v. Maxwell, 114 Wn.2d 761, 791 P.2d 223 (1990). Voluntary production of information about power consumption does not violate the statute. State v. Maxfield, 125 Wn.2d 378, 886 P.2d 123 (1994). See also State v. Cole, 128 Wn.2d 262, 906 P.2d 925 (1995).
(7) Any information obtained by governmental agencies that is collected by the use of a motor carrier intelligent transportation system or any comparable information equipment attached to a truck, tractor, or trailer; however, the information may be given to other governmental agencies or the owners of the truck, tractor, or trailer from which the information is obtained. As used in this subsection, "motor carrier" has the same definition as provided in RCW 81.80.010; and
(8) The personally identifying information of persons who acquire and use transponders or other technology to facilitate payment of tolls. This information may be disclosed in aggregate form as long as the data does not contain any personally identifying information. For these purposes aggregate data may include the census tract of the account holder as long as any individual personally identifying information is not released. Personally identifying information may be released to law enforcement agencies only for toll enforcement purposes. Personally identifying information may be released to law enforcement agencies for other purposes only if the request is accompanied by a court order.
9. Timeshare and Condominium Owners Lists
Statutory Provision: Membership lists or lists of members or owners of interests of units in timeshare projects, subdivisions, camping resorts, condominiums, land developments, or common-interest communities affiliated with such projects, regulated by the department of licensing, in the files or possession of the department are exempt from disclosure under this chapter. RCW 42.56.340.
10. Health Professionals
RCW 42.56.350 exempts from disclosure:
(1) The federal Social Security number of individuals governed under chapter 18.130 RCW maintained in the files of the department of health is exempt from disclosure under this chapter. The exemption in this section does not apply to requests made directly to the department from federal, state, and local agencies of government, and national and state licensing, credentialing, investigatory, disciplinary, and examination organizations.
(2) The current residential address and current residential telephone number of a health care provider governed under chapter 18.130 RCW maintained in the files of the department are exempt from disclosure under this chapter, if the provider requests that this information be withheld from public inspection and copying, and provides to the department of health an accurate alternate or business address and business telephone number. The current residential address and residential telephone number of a health care provider governed under RCW 18.130.040 maintained in the files of the department of health shall automatically be withheld from public inspection and copying unless the provider specifically requests the information be released, and except as provided for under RCW 42.56.070(9).
11. Health Care
RCW 42.56.360 provides:
(1) The following health care information is exempt from disclosure under this chapter:
(a) Information obtained by the board of pharmacy as provided in RCW 69.45.090;
(b) Information obtained by the board of pharmacy or the department of health and its representatives as provided in RCW 69.41.044, 69.41.280, and 18.64.420;
(c) Information and documents created specifically for, and collected and maintained by a quality improvement committee under RCW 43.70.510 or 70.41.200, or by a peer review committee under RCW 4.24.250, or by a quality assurance committee pursuant to RCW 74.42.640 or 18.20.390, and notifications or reports of adverse events or incidents made under RCW 70.56.020 or 70.56.040, regardless of which agency is in possession of the information and documents;
(d)(i) Proprietary financial and commercial information that the submitting entity, with review by the department of health, specifically identifies at the time it is submitted and that is provided to or obtained by the department of health in connection with an application for, or the supervision of, an antitrust exemption sought by the submitting entity under RCW 43.72.310; (ii) If a request for such information is received, the submitting entity must be notified of the request. Within ten business days of receipt of the notice, the submitting entity shall provide a written statement of the continuing need for confidentiality, which shall be provided to the requester. Upon receipt of such notice, the department of health shall continue to treat information designated under this subsection (1)(d) as exempt from disclosure; (iii) If the requester initiates an action to compel disclosure under this chapter, the submitting entity must be joined as a party to demonstrate the continuing need for confidentiality;
(e) Records of the entity obtained in an action under RCW 18.71.300 through 18.71.340;
(f) Except for published statistical compilations and reports relating to the infant mortality review studies that do not identify individual cases and sources of information, any records or documents obtained, prepared, or maintained by the local health department for the purposes of an infant mortality review conducted by the department of health under RCW 70.05.170; and
(g) Complaints filed under chapter 18.130 RCW after July 27, 1997, to the extent provided in RCW 18.130.095(1).
(2) Chapter 70.02 RCW [Health Care Information Act] applies to public inspection and copying of health care information of patients.
The exemption of health care information is addressed in detail in Chapter 14, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws. The disclosure of these highly personal records when held by public agencies is governed by the state Health Care Information Act, which mirrors and meshes with the federal Privacy Rule, 45 CFR 160 – 164, adopted by authority of the Health Insurance Portability and Accountability Act (HIPAA), 42 USC §1320d.
12. Domestic Violence and Rape Crisis Centers
Statutory Provision: Client records maintained by an agency that is a domestic violence program as defined in RCW 70.123.020 or 70.123.075 or a rape crisis center as defined in RCW 70.125.030 are exempt from disclosure under this chapter. RCW 42.56.370.
See also the address confidentiality program at the office of the Secretary of State under RCW 40.24.070 and the protection of this information in marriage licenses under RCW 26.04.175;
13. Agriculture and Livestock
RCW 42.56.380 exempts from disclosure:
(1) Business-related information under RCW 15.86.110;
(2) Information provided under RCW 15.54.362;
(3) Production or sales records required to determine assessment levels and actual assessment payments to commodity boards and commissions formed under chapters 15.24, 15.26, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.100, 1 5.89, and 16.67 RCW or required by the department of agriculture to administer these chapters or the department's programs;
(4) Consignment information contained on phytosanitary certificates issued by the department of agriculture under chapters 15.13, 15.49, and 15.17 RCW or federal phytosanitary certificates issued under 7 C.F.R. 353 through cooperative agreements with the animal and plant health inspection service, United States department of agriculture, or on applications for phytosanitary certification required by the department of agriculture;
(5) Financial and commercial information and records supplied by persons (a) to the department of agriculture for the purpose of conducting a referendum for the potential establishment of a commodity board or commission; or (b) to the department of agriculture or commodity boards or commissions formed under chapters 15.24, 15.26, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.100, 15.89, or 16.67 RCWwith respect to domestic or export marketing activities or individual producer's production information;
(6) Except under RCW 15.19.080, information obtained regarding the purchases, sales, or production of an individual American ginseng grower or dealer;
(7) Information that can be identified to a particular business and that is collected under section 3(1), chapter 235, Laws of 2002;
(8) Financial statements provided under RCW 16.65.030(1)(d);
(9) Information submitted by an individual or business for the purpose of participating in a state or national animal identification system. Disclosure to local, state, and federal officials is not public disclosure. This exemption does not affect the disclosure of information used in reportable animal health investigations under chapter 16.36 RCW once they are complete; and
(10) Results of testing for animal diseases not required to be reported under chapter 16.36 RCW that is done at the request of the animal owner or his or her designee that can be identified to a particular business or individual.
In addition, RCW 42.56.610 [[link]] provides:
The following information in plans, records, and reports obtained by state and local agencies from dairies, animal feeding operations, and concentrated animal feeding operations, not required to apply for a national pollutant discharge elimination system permit is disclosable only in ranges that provide meaningful information to the public while ensuring confidentiality of business information regarding: (1) Number of animals; (2) volume of livestock nutrients generated; (3) number of acres covered by the plan or used for land application of livestock nutrients; (4) livestock nutrients transferred to other persons; and (5) crop yields. The department of agriculture shall adopt rules to implement this section in consultation with affected state and local agencies.
14. Emergency or Transitional Housing
Statutory Provision: Names of individuals residing in emergency or transitional housing that are furnished to the department of revenue or a county assessor in order to substantiate a claim for property tax exemption under RCW 84.36.043 are exempt from disclosure under this chapter. RCW 42.56.390.
15. Insurance and Financial Institutions
RCW 42.56.400 exempts from disclosure:
(1) Records maintained by the board of industrial insurance appeals that are related to appeals of crime victims' compensation claims filed with the board under RCW 7.68.110;
(2) Information obtained and exempted or withheld from public inspection by the health care authority under RCW 41.05.026, whether retained by the authority, transferred to another state purchased health care program by the authority, or transferred by the authority to a technical review committee created to facilitate the development, acquisition, or implementation of state purchased health care under chapter 41.05 RCW;
(3) The names and individual identification data of all viators regulated by the insurance commissioner under chapter 48.102 RCW;
(4) Information provided under RCW 48.30A.045 through 48.30A.060;
(5) Information provided under RCW 48.05.510through 48.05.535, 48.43.200 through 48.43.225, 48.44.530 through 48.44.555 , and 48.46.600 through 48.46.625;
(6) Information gathered under chapter 19.85 RCW or RCW 34.05.328 that can be identified to a particular business;
(7) Examination reports and information obtained by the department of financial institutions from banks under RCW 30.04.075, from savings banks under RCW 32.04.220, from savings and loan associations under RCW 33.04.110, from credit unions under RCW 31.12.565, from check cashers and sellers under RCW 31.45.030(3), and from securities brokers and investment advisers under RCW 21.20.100, all of which is confidential and privileged information;
(8) Information provided to the insurance commissioner under RCW 48.110.040(3);
(9) Documents, materials, or information obtained by the insurance commissioner under RCW 48.02.065, all of which are confidential and privileged;
(10) Confidential proprietary and trade secret information provided to the commissioner under RCW 48.31C.020 through 48.31C.050 and 48.31C.070;
(11) Data filed under RCW 48.140.020, 48.140.030, 48.140.050, and 7.70.140 that, alone or in combination with any other data, may reveal the identity of a claimant, health care provider, health care facility, insuring entity, or self-insurer involved in a particular claim or a collection of claims. For the purposes of this subsection: (a) "Claimant" has the same meaning as in RCW 48.140.010(2). (b) "Health care facility" has the same meaning as in RCW 48.140.010(6). (c) "Health care provider" has the same meaning as in RCW 48.140.010(7). (d) "Insuring entity" has the same meaning as in RCW 48.140.010(8). (e) "Self-insurer" has the same meaning as in RCW 48.140.010(11); and
(12) Documents, materials, or information obtained by the insurance commissioner under RCW 48.135.060.
16. Employment Security Department Records
Statutory Provisions: Any information or records concerning an individual or employing unit obtained by the department of employment security pursuant to the administration of [Title 50 RCW] or other programs for which the department has responsibility shall be private and confidential, except as otherwise provided in this chapter. This chapter does not create a rule of evidence. Information or records may be released by the department of employment security when the release is: (1) Required by the federal government in connection with, or as a condition of funding for, a program being administered by the department; or (2) Requested by a county clerk for the purposes of RCW 9.94A.760. The provisions of RCW 50.13.060 (1) (a), (b) and (c) will not apply to such release. RCW 50.13.020.
Records maintained by the employment security department and subject to chapter 50.13 RCW if provided to another individual or organization for operational, research, or evaluation purposes are exempt from disclosure under this chapter. RCW 42.56.410.
17. Security and Terrorism
RCW 42.56.420 exempts from disclosure:
(1) Those portions of records assembled, prepared, or maintained to prevent, mitigate, or respond to criminal terrorist acts, which are acts that significantly disrupt the conduct of government or of the general civilian population of the state or the United States and that manifest an extreme indifference to human life, the public disclosure of which would have a substantial likelihood of threatening public safety, consisting of: (a) Specific and unique vulnerability assessments or specific and unique response or deployment plans, including compiled underlying data collected in preparation of or essential to the assessments, or to the response or deployment plans; and (b) Records not subject to public disclosure under federal law that are shared by federal or international agencies, and information prepared from national security briefings provided to state or local government officials related to domestic preparedness for acts of terrorism;
(2) Those portions of records containing specific and unique vulnerability assessments or specific and unique emergency and escape response plans at a city, county, or state adult or juvenile correctional facility, the public disclosure of which would have a substantial likelihood of threatening the security of a city, county, or state adult or juvenile correctional facility or any individual's safety;
(3) Information compiled by school districts or schools in the development of their comprehensive safe school plans under RCW 28A.320.125, to the extent that they identify specific vulnerabilities of school districts and each individual school;
(4) Information regarding the infrastructure and security of computer and telecommunications networks, consisting of security passwords, security access codes and programs, access codes for secure software applications, security and service recovery plans, security risk assessments, and security test results to the extent that they identify specific system vulnerabilities; and
(5) The security section of transportation system safety and security program plans required under RCW 35.21.228, 35A.21.300, 36.01.210, 36.57.120, 36.57A.170, and 81.112.180.
18. Fish and Wildlife
RCW 42.56.430 exempts from disclosure:
(1) Commercial fishing catch data from logbooks required to be provided to the department of fish and wildlife under RCW 77.12.047, when the data identifies specific catch location, timing, or methodology and the release of which would result in unfair competitive disadvantage to the commercial fisher providing the catch data, however, this information may be released to government agencies concerned with the management of fish and wildlife resources;
(2) Sensitive wildlife data obtained by the department of fish and wildlife, however, sensitive wildlife data may be released to government agencies concerned with the management of fish and wildlife resources. As used in this subsection, sensitive wildlife data includes: (a) The nesting sites or specific locations of endangered species designated under RCW 77.12.020, or threatened or sensitive species classified by rule of the department of fish and wildlife; (b) Radio frequencies used in, or locational data generated by, telemetry studies; or (c) Other location data that could compromise the viability of a specific fish or wildlife population, and where at least one of the following criteria are met: (i) The species has a known commercial or black market value; (ii) There is a history of malicious take of that species; or (iii) There is a known demand to visit, take, or disturb, and the species behavior or ecology renders it especially vulnerable or the species has an extremely limited distribution and concentration; and
(3) The personally identifying information of persons who acquire recreational licenses under RCW 77.32.010 or commercial licenses under chapter 77.65 or 77.70 RCW, except name, address of contact used by the department, and type of license, endorsement, or tag; however, the department of fish and wildlife may disclose personally identifying information to: (a) Government agencies concerned with the management of fish and wildlife resources; (b) The department of social and health services, child support division, and to the department of licensing in order to implement RCW 77.32.014 and 46.20.291; and (c) Law enforcement agencies for the purpose of firearm possession enforcement under RCW 9.41.040.
19. Veterans’ Discharge Papers
See RCW 42.56.440.
20. Check Cashers and Sellers Licensing Applications
Statutory Provision: Information in an application for licensing or a small loan endorsement under chapter 31.45 RCW regarding the personal residential address, telephone number of the applicant, or financial statement is exempt from disclosure under this chapter. RCW 42.56.450.
Statutory Provision: All records obtained and all reports produced as required by state fireworks law, chapter 70.77 RCW, are exempt from disclosure under this chapter. RCW 42.56.460.
22. Correctional Industry Workers
Statutory Provision: All records, documents, data, and other materials obtained under the requirements of RCW 72.09.115 from an existing correctional industries class I work program participant or an applicant for a proposed new or expanded class I correctional industries work program are exempt from public disclosure under this chapter. RCW 42.56.470.
23. Mediation Communications
Statutory Provision: Records of mediation communications that are privileged under chapter 7.07 RCW are exempt from disclosure under this chapter. RCW 42.56.600.
RCW 7.07.070 states that mediation communications are confidential as agreed by the parties or as covered by other laws.
2.3 “Other Statutes” (Laws Outside the Public Records Providing Exemptions from Disclosure)
The PRA provides that an agency can refuse inspection and copying of public records based on exemptions found either in Chapter 42.56 RCW or in an "other statute which exempts or prohibits disclosure of specific information or records." Thus, if another statute: (1) does not conflict with the Act; and (2) either exempts or prohibits disclosure of specific public records in their entirety; then (3) the information may be withheld despite the redaction requirements in RCW 42.56.210(1). Progressive Animal Welfare Soc'y v. University of Wash., 125 Wn.2d 243, 261-62, 884 P.2d 592 (1994). The "other statutes" exception applies only to those exemptions explicitly identified in other statutes; it does not allow a court "to imply exemptions but only allows specific exemptions to stand." Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 800, 791 P.2d 526 (1990) (cited in Progressive Animal Welfare Soc'y v. University of Wash., 125 W.2d. at 261-62).
For a comprehensive list of all “other statute” exemptions, see Chapter 12, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws (Greg Overstreet, ed.) (Wash. State Bar Assoc. 2006) (available for purchase)
A. Criminal Records Privacy Act (Chapter 10.97 RCW)
This act deals with disclosure of "criminal history record information," which is defined as information contained in records collected on individuals by criminal justice agencies, other than courts. These documents include identifiable descriptions and records of arrests, detentions, indictments, and criminal charges, and any dispositions, including sentences, correctional supervision, and release. "Criminal history record information" is divided into "conviction data," which may be disseminated freely, and "nonconviction data," which may be disclosed to other criminal justice agencies; to implement a statute, ordinance, executive order, or court rule; to those under contract with a criminal justice agency to provide services related to the administration of criminal justice; or for research with an agreement limiting the use of the data. Investigative information does not fall within the definition of "criminal history record information." Release of police investigative information is covered by the PRA. See RCW 42.56.240(1) and Section 2.2B (above).
B. Records of a Juvenile Justice or Care Agency and Other Specific Juvenile Records (Chapter 13.50 RCW)
See Deer v. Dep’t of Social & Health Servs., 122 Wn. App. 84, 93 P.3d 195 (2004). That decision describes the relationship between the PRA and these “other statute” exemptions, and holds that these records meet the definition of public records under the PRA. The court also found that these statutes supplement the PRA unless they conflict and that the process set by these statutes is the “exclusive means” of obtaining these records. Parties denied access to these records must follow these statutes to challenge the denial.
C. Dissolution of Marriage and Child Support (RCW 26.09.255, 26.10.150, 26.12.170, 26.23.120, 26.26.041, 26.26.450)
D. Adoption (Chapter 26.33 RCW)
These records are confidential. Information that does not identify the parties can be provided to others involved in the process. A confidential intermediary may be appointed by the court to determine if the identity can be revealed if requested.
E. Uniform Health Care Information Act (Chapter 70.02 RCW)
This act governs the disclosure of medical records. Of particular interest is RCW 70.02.060, which controls the disclosure of health care information through discovery. The attorney seeking discovery of health care information must give the health care provider and the patient or his or her attorney at least fourteen days notice before service of a discovery request or compulsory process. The act is addressed in detail in Chapter 14, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws. That chapter also covers laws applying to the following specially protected types of health information:
1. Mental Health Records (RCW 71.05.390 – 420)
2. Mental Health Records of Juveniles (RCW 71.34.200)
3. HIV/STD Information (RCW 70.24.105)
4. Alcohol and Drug Treatment Records (RCW 70.96A.150, 42 C.F.R. Part 2)
F. Sex Offenders Community Protection Act (RCW 4.24.550)
G. Jail Records (RCW 70.48.100)
H. Autopsy Reports (RCW 68.50.105)
I. Traffic Accident Reports (RCW 46.52.080)
J. Communications Made to a Public Officer in Official Confidence, When the Public Interest Would Suffer by Disclosure (RCW 5.60.060(5))
Attorney General’s Open Government Internet Deskbook (Public Records and Open Meetings)
Chapter 1: Public Records Act – General and Procedural Provisions
Chapter 2: Public Records Act – Exemptions from Disclosure (Laws Allowing Withholding of Records)
Chapter 3: Open Public Meetings Act – General and Procedural Provisions
Chapter 4: Open Public Meetings Act – Executive Sessions (Closed Sessions)