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Public Records at the Intersection of Personal Privacy, Public Disclosure, and Litigation: Washington Supreme Court Clarifies Public Records Act Obligations

May 13, 2013 posted by Eric Christensen

The Washington Supreme Court late last week issued a pair of opinions that provide a road map for public agencies struggling to reconcile disclosure obligations under the Washington Public Records Act ("PRA") with the thicket of state and federal laws protecting information from public disclosure. Read together, the decisions clarify how public agencies should treat information that is protected from disclosure under either federal law or under the multitude of exemptions from public disclosure provided by Washington law. The cases also serve as a powerful reminder that Washington public agencies must have public disclosure policies in place and carefully follow those policies -- with assistance from legal counsel, if required -- when responding to requests for disclosure of public records. Finally, the Court seems to have gone out of its way to provide guidance on its view of how the Public Records Act should be applied. It may therefore be advisable for public agencies with a disclosure policy in place to review the policy in light of the Court's new guidance. The opinion in Resident Action Council v. Seattle Housing Authority leaves the reader with a sense of the Court's frustration that Washington public agencies seem regularly to misunderstand or misapply the PRA. The Court seems to imply that such errors help make the PRA one of the most litigated statutes before the Court. Despite Chief Justice Madsen's concurrence arguing that the Court goes well beyond what is required to decide the case, the opinion expends a good deal of ink setting forth the analytical framework the Court believes public agencies should follow when responding to PRA requests. As an over-arching framework, the Court identifies five "indispensable steps" an agency must go through in responding to a PRA request, and even includes a flow chart to illustrate these steps. In essence, the flowchart is simply a way to illustrate the familiar principle that public agencies have an obligation to disclose public records unless the record is subject to an exemption and, if the record is subject to an exemption, to disclose redacted records. If the agency has properly determined that the information is protected, it can be released only "in rare cases" where a judge concludes that continued protection of the information is "clearly unnecessary." The Court adds a new step to this analytical framework, identifying a system for classifying the PRA's141 exemptions and explaining how the different classes of exemptions should be analyzed. The Court divides the PRA's exemptions into "categorical" exemptions and "conditional" exemptions. Categorical exemptions are those that "exempt without limit a particular type of information or record." For example, RCW 42.56.230(a) categorically exempts debit card numbers from public disclosure. Conditional exemptions are those that exempt a particular type of information from public disclosure, "but only insofar as an identified privacy right or vital governmental interest is demonstrably threatened in a given case." For example, the PRA exempts from disclosure the identity of crime victims but only "if disclosure would endanger any person's life, physical safety, or property." RCW 42.56.240(2). The Court's opinion includes an appendix that categorizes all 141 PRA exemptions as either categorical, conditional, or, in the case of four exemptions, "ambiguous." When an agency applies a categorical exemption, it must withhold the information falling within that category because the exemption represents a legislative determination that such information should always be protected. For example, the exemption for debit card numbers represents a legislative determination that debit card numbers should not be publicly released in any circumstance. On the other hand, if the agency is applying a conditional exemption, it must determine not only that the information falls within the protected category but must also demonstrate that release of the information would harm the interests identified in the statute. For example, if the agency applied the exemption protecting the identity of crime victims, it would have to provide some basis for reasonably concluding that release of a victim's identity would endanger life, safety or property. Whether it applies a categorical or conditional exemption, the agency has an obligation to release redacted versions of public records if protected information can be deleted. The agency in Seattle Housing Authority primarily contested this aspect of the PRA. The agency argued that the PRA's exemption protecting personal information in files maintained for welfare recipients required withholding of the entire file concerning tenant grievance hearings conducted by the Authority. The Court rejected this claim, finding that, while specific personal information must be redacted, the agency was obligated under the PRA to publicly release redacted versions of the hearing files. In this light, the Court's conclusion in Ameriquest Mortgage Co. v. Office of the Attorney General is rather surprising. There the Court concluded that, under the federal Gramm-Leach-Bliley Act of 1999 ("GLBA"), documents containing personally-identifiable financial information are completely exempt from disclosure under the PRA, even if the protected personal information can be redacted. At first glance, the Court's conclusion seems irreconcilable with Seattle Housing Authority. The discrepancy is explained by the GLBA, which protects not just personally identifiable financial information, but also information "derived using" personally identifiable financial information. The Court concludes that the documents at issue there -- mortgage applications and related information obtained by the Attorney General from Ameriquest as part of its investigation of abusive mortgage practices -- contained personally identifiable financial information and were therefore exempt from disclosure under the PRA. Further, the Court concluded that redacted versions of the documents could not be released because the redacted versions would be "derived from" personally-identifiable financial information. As a matter of federal law, then, the documents were protected in their entirety. Ameriquest Mortgage thus adds an additional step to the analytical framework set forth in Seattle Housing Authority. Where information is subject to privacy or other protections under federal law, it can be released under the PRA only where release is allowed under the federal statute. And the determination of whether release is allowed under the federal statute will depend upon a careful reading of the particular statute involved, including a determination of whether release of redacted documents is allowed. The Court's decisions also underscore a couple of lessons for public agencies grappling with the PRA. First, an ounce of prevention, in the form of a carefully designed disclosure policy, is worth a pound of cure. The Seattle Housing Authority did not have a disclosure policy in place and the Court imposed a substantial award of statutory damages, as well as attorney's fees, on the agency, in part for this failure. Further, the agency's failure to produce redacted documents might well have been avoided, or at least substantially mitigated, had the agency developed a policy and followed it when the request for tenant hearing records was received. By contrast, the Attorney General's office followed its well-established public records policy, treated the request for documents seriously, erred on the side of disclosure, and ultimately avoided any penalty or attorney fee liability, even though the Court ultimately disagreed with its reading of GLBA. The second lesson is that agencies -- and private entities submitting records to Washington agencies -- should anticipate that any documents obtained by an agency may be subject to a PRA request. Hence, before documents are provided to an agency, it is wise to consider the consequences of a public release, and, if necessary, to take steps to limit possible disclosure before documents are provided to an agency. In addition, the parties should consider whether the agency or the submitting entity will have the obligation to try to prevent disclosure. This is most strongly demonstrated by Ameriquest. There the Attorney General sought voluntary disclosure of mortgage-related records, without making clear whether the request was a Civil Investigative Demand ("CID"). If Ameriquest had insisted that the documents were to be released only under a CID, they would have been fully exempt from public disclosure under the Washington statute governing CIDs. The Court, however, concluded that the documents had been voluntarily produced and therefore were not subject to the protection afforded CIDs. Therefore, when the documents were sought by an attorney specializing in plaintiffs litigation involving mortgage fraud, Ameriquest was forced to try to prevent the disclosure of the documents relying on the GLBA. Further, the Attorney General's office determined that it should release the redacted documents, placing the burden of trying to prevent release on Ameriquest. In short, with careful consideration of the PRA and its potential consequences at the outset, Ameriquest likely could have avoided a great deal of litigation, expense, and uncertainty. On the other hand, the Attorney General's measured response to the public records request demonstrates that treating even difficult issues with care can avoid agency liability under the PRA. If you have any questions about this post or the Washington Public Records Act, please contact a member of GTH's Municipalities & Municipal Entities practice group. We have decades of experience in assisting Washington cities, PUDs, and other municipal entities in dealing with the Public Records Act, the Open Meetings Act, the Washington Constitution, public contracting, and other aspects of municipal law in Washington.