Trustee Support Resources

As stated in the Open Government Resource Manual, Chapter 2, the Public Records Act (PRA) “….and other statutes outside the PRA contain hundreds of very specific exemptions from disclosure and dozens of court cases interpret them…. 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. Exemptions are ‘permissive rather than mandatory.’” (See also Attorney General Opinion, AGO 1980 No. 1.) A summary of exemptions may be found in WAC 44-14-06002. The Municipal Research and Services Center (MRSC) has compiled a list of “Exemption and Prohibition Statutes Not Listed in Chapter 42.56 RCW” in Appendix C of their online publication, Public Records Act for Washington Cities, Counties, and Special Purpose Districts.

What are some of the types of records that are exempt from public disclosure?

Employment and Licensing:

RCW 42.56.250 provides for exemptions related to employment and licensing, including:

• Test and exam questions;
• All applications for public employment;
• Public employees and volunteers:
• Home addresses;
• Personal telephone numbers, including cell phones;
• Personal e-mail addresses;
• Social security numbers;
• Emergency contact information held by any public agency in:
  • Personnel records;
  • Public employment related records
  • Volunteer rosters;
  • Mailing lists.
• Dependents of public employees and volunteers:
• Names;
• Dates of birth;
• Residential addresses;
• Personal telephone numbers, including cell phones;
• Personal e-mail addresses;
• Social security numbers;
• Emergency contact information held by any public agency in
  • Personnel records;
  • Public employment related records
  • Volunteer rosters
  • Mailing lists.
• Investigative records compiled by an employing agency conducting a current investigation of a possible unfair practice under RCW 49.60 or of a possible violation of other federal, state, or local laws prohibiting discrimination in employment.

Personal Information:

RCW 42.56.230 provides exemptions for personal information, including:

• Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy. As an example, information in employee files evaluating public job performance would be exempt unless there is misconduct;
• Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers, except when disclosure is expressly required by or governed by other law;
• Documents and related materials and scanned images of documents and related materials used to prove identity, age, residential address, social security number, or other personal information required to apply for a driver’s license or identicard.

Deliberative Process:

RCW 42.56.280 provides exemption from public disclosure for: Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended. However, once a record is cited by the agency in connection with any agency action, it is not exempt. The Open Government Resource Manual, Chapter 2 states that “the exemption applies only to documents that are part of the deliberative or policy-making process; records about implementing policy are not covered…. For this reason, inter-agency (as opposed to intra-agency) discussions probably are not covered by this exemption…. Matters that are factual, or that are assumed to be factual for discussion purposes, must be disclosed….”

Litigation:

RCW 42.56.290 provides exemption from public disclosure for 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.

Vanpool, Carpool, or Ride-Sharing; Paratransit Programs:

RCW 42.56.330 exempts:

• The names, home addresses, home phone numbers, and other individually identifiable records held by an agency in relation to a vanpool, carpool, or other ride-sharing program 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;
• 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.

Security and Terrorism:

RCW 42.56.420(4) exempts several types of records relating to the infrastructure and security of computer and telecommunications networks:

• Security passwords;
• Security access codes and programs;
• Access codes for secure software applications;
• Security and service recovery plans;
• Security risk assessments;
• Security test results that identify specific system vulnerabilities.

What about library records?

• 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. RCW 42.56.310;
• Except for public records as defined in RCW 40.14.010 (Preservation and Destruction of Public Records), 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 are exempt from disclosure. RCW 42.56.320(4).

What about privacy issues?

The Open Government Resource Manual, Chapter 2 states that “there is no general ‘privacy’ exemption. AGO 1988 No. 12 Since ‘privacy’ is not a stand-alone exemption, an agency cannot claim RCW 42.56.050 [invasion of privacy] as an exemption. …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.”

What about attorney-client privilege?

Records or portions or records covered by the attorney-client privilege are exempt from disclosure. RCW 5.60.060(2). For additional information, see WAC 44-14-06002(3).

What about liability?

A good faith response in releasing a public record absolves the library, its trustees or staff from liability arising from the disclosure. (RCW 42.56.060).

However, the Open Government Resource Manual states that “…the protection from liability does not apply to an agency’s failure to disclose information. A court may award penalties and attorneys’ fees under RCW 42.56.550(4) to a prevailing party even if the agency acts in good faith.”