AGO 1983 No. 9 - May 17 1983
DISTRICTS ‑- PUBLIC UTILITY ‑- RECORDS ‑- ACCESS TO CERTAIN RECORDS OF PUBLIC UTILITY DISTRICTS UNDER STATE PUBLIC DISCLOSURE LAW
(1) The records of a public utility district concerning the names and addresses of individual customers are public records which such a district is required to furnish for public inspection and copying pursuant to the state public disclosure law (chapter 42.17 RCW).
(2) An individual customer may not, on the basis of an asserted right of privacy, prevent disclosure of such records by instructing the public utility district not to permit it in his or her case.
(3) Notwithstanding the foregoing, however, RCW 42.17.260(5) prohibits disclosure when the request is made for a list of customers by a commercial entity such as a bill collector or process server but not by governmental entities such as county sheriffs, the State Patrol, or a television reception improvement district not engaged in any "profit expecting" business activity.
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May 17, 1983
Honorable J. Vander Stoep
St. Rep., 20th District
331 House Office Building
Olympia, Washington 98504
Cite as: AGO 1983 No. 9
By letter previously acknowledged you requested the opinion of this office on several questions pertaining to the disclosure of information maintained by public utility districts. We paraphrase your questions as follows:
(1) Must a public utility district furnish its records containing the names and addresses of individual customers for public inspection and copying pursuant to the state public disclosure law (chapter 42.17 RCW)?
[[Orig. Op. Page 2]]
(2) Assuming that the records must be so provided, may an individual customer nevertheless prevent disclosure by instructing the public utility district not to permit it in his or her case?
(3) Assuming an affirmative answer to question (1) and a negative answer to question (2), does RCW 42.17.260(5) prohibit disclosure when the request is made for a list of customers by (a) governmental entities such as county sheriffs, the State Patrol, television reception improvement districts or (b) commercial entities such as bill collectors or process servers?
We answer your first question in the affirmative and your second and third questions as set forth in our analysis.
For purposes of the state Public Disclosure Act, RCW 42.17.020(26) defines the term "public record" as follows:
". . . any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."
Maintaining the names and addresses of its customers is, quite obviously, essential to the conduct of the business of a public utility district. We therefore conclude that documents containing such information are public records under the law.
In our opinion, in turn, public inspection and copying of such records held by a public utility district is governed exclusively by the provisions of the public disclosure law. We are unaware of any other state law relating to such districts which supplements of supersedes those provisions. While some provisions of state law declare certain records to be exempt from disclosure under chapter 42.17 RCW or to be secret or confidential,1/ there are no such [[Orig. Op. Page 3]] provisions in Title 54 RCW governing records held by a public utility district. We further note that the federal Freedom of Information Act, which also governs access to public records, applies only to federal agencies by definition. See, 5 U.S.C. § 551(1).
The public disclosure law provides that certain categories of records are exempt from public inspection and copying. See, RCW 42.17.310. In our opinion, however, none of those exempt categories would include the names and addresses of individual customers. Cf., AGO 1973 No. 4. We thus conclude, in direct answer to your first question, that the records of a public utility district which contain those names and addresses are public records and are not exempt from inspection under the public disclosure law.2/
Your second question asks whether customers of the public utility district are nevertheless able to take steps to prevent the disclosure of such information. Apparently, some customers have complained that the release of their names and addresses violates their "right of privacy." In our opinion, however, that assertion is unfounded.
While many aspects of an individual's right to privacy are unsettled our Supreme Court held inHearst Corporation v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978) that an individual's right to privacy‑-as it relates to the public inspection and copying of public records‑-is defined by the common law as set forth in Restatement (2nd) of Torts § 652D at 383 (1977):
[[Orig. Op. Page 4]]
"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."
The court in that case has also cited the following comment to the Restatement as illustrative of the kinds of facts which are protected by this right to privacy.
"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' 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 actionable invasion of his privacy, unless the matter is one of legitimate public interest.
"Restatement,supra, at 386. Hearst Corporation v. Hoppe,supra, at 135-36.
In our opinion, this narrow definition of the right to privacy does not protect the names or addresses of an individual public utility district customer. In fact, we further note that this same standard has been applied in other cases which involve issues similar to those raised by your question. Thus, inVan Buren v. Miller, 22 Wn.App. 836, 592 P.2d 671 (1979), the Court held that a county assessor was required to furnish unrecorded leases used in the tax assessment of farmland. The assessor had argued that the identity of the lessee and the location of those leaseholds were both protected by a right of privacy. However, the Court held that theHoppe definition did not protect such information since it was not of a personal nature‑-pointing out, in the course of its decision, that the information was already known to the lessor and [[Orig. Op. Page 5]] lessee, and to the assessor and her assistants, and that "[n]ormally, privacy is lost in disclosure to another person." In addition, inVan Buren, the assessor argued that she had impliedly promised confidentiality in obtaining the unrecorded leases. The Court also rejected that argument, however, stating that the assessor could not carve out an enclave of privilege by promising confidentiality.
Likewise, inLaborers Int' Union v. Aberdeen, 31 Wn.App. 445, 642 P.2d 418 (writ of review denied 97 Wn.2d 1024) (1982), the Court held that the city was required to furnish payroll records to a union. A private contractor had filed the payroll records pursuant to federal law. The Court applied theHoppe standard and concluded that it offered no protection to the identity of the persons on the payroll.
Finally, our research discloses cases from other jurisdictions addressing, and similarly disposing of, the issue of whether the right of privacy includes an individual's name and address. Thus, inMcNutt v. New Mexico State Tribune, (NM), 538 P.2d 804, 84 A.L.R. 3rd 1148 (1975), a New Mexico Court held that a police officer's right of privacy was not violated when the newspaper published both his name and address, even where the publication of the address might have subjected the police officer to harassment. And, inShibley v. Time, Inc., (Ohio Appl), 341 N.E.2d 337, 82 A.L.R. 3rd 765 (1975), an Ohio Court held that no right of privacy protected magazine subscribers from the sale of subscription lists by publishers to direct mail advertisers.3/
Likewise, in Montinieri v. Southern New England Telephone Company, 175 Conn. 337, 398 A.2d 1180, 1 A.L.R. 4th 209 (1978), the Supreme Court of Connecticut held that a telephone company was not liable for a privacy violation when it disclosed a person's name or address even though he or she had an unlisted number.
Given the authorities cited above we must, therefore, conclude that the right of privacy here asserted does not include the names or addresses of individual customers of public utility districts and that a particular customer may not prevent the release of that information‑-except on the basis indicated below in response to question (3).
[[Orig. Op. Page 6]]
Your third question, in part, asks whether RCW 42.17.260(5)4/ prohibits a public utility district from disclosing lists of its customers when the requestor is a governmental entity such as the State Patrol, a sheriff or a television reception improvement district. In our opinion it does not.
This office has previously issued an opinion (AGO 1975 No. 15, copy enclosed which interprets the impact of RCW 42.17.260(5), supra, as it relates to records held by the Department of Motor Vehicles. We there conclude that the statute prevents an agency from supplying the names of natural persons in list form when the requestor intends to use it to contact or in some way personally affect the individuals identified on the list and when the purpose of the contact would be to facilitate the requestor's commercial activities. Since the issuance of that opinion, the courts have not in any case ruled to the contrary on that issue. We therefore adhere to the reasoning and conclusions stated therein.
In AGO 1975 No. 15, we conclude that the definition of "commercial purpose" for purposes of RCW 42.17.260(5) encompasses any "profit expecting" business activity. Because no agency of government is profit expecting, it is our opinion that this prohibition would not apply to any such governmental request.5/
Your final question also asks whether RCW 42.17.260(5),supra, would prohibit disclosure of lists of customers to private, commercial entities such as process servers or bill collectors. As we also noted in AGO 1975 No. 15,supra, while we believe that this provision does not prohibit access to raw data from which a person [[Orig. Op. Page 7]] could construct his own list of individuals for commercial purposes, it does prevent the release of previously prepared lists of customers of a public agency to such a commercial entity. That is the case even if the agency (i.e., here, the public utility district) can effectively grant access to the requested information only in list form. Accord, AGLO 1975 No. 38, copy enclosed. We also assume that such business activities as process serving or the collection of debts necessarily involve a contact with individuals. It is, therefore, our opinion that the release of a list of the customers of a public utility district to such a commercial entity falls squarely within the prohibition.
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
THOMAS G. HOLCOMB, Jr.
Assistant Attorney General
*** FOOTNOTES ***
1/See, interalia, RCW 82.32.330 (taxpayer information furnished to the Department of Revenue); RCW 18.72.265 (certain reports filed with the Medical Disciplinary Board); RCW 28B.16.110 (salary survey information from private employers to the Higher Education Personnel Board); RCW 46.20.041 (physician certificate furnished to the Department of Motor Vehicles).
2/If, in addition, the records contain additional information which is protected by a right of privacy under the ensuing analysis in our response to question (2) below, RCW 42.17.260(1) states that: ". . . To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record; . . ." and see also, RCW 42.17.310(2).
3/But see, in out state, RCW 42.17.260(5), infra.
4/This provision reads as follows:
"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: . . ."
5/We also note, in particular, that television reception improvement districts are statutorily required by RCW 36.95.080 to compile their own lists of owners of television sets and thus may require access to utility records in order to fulfill this requirement.