Public Records Exemptions Accountability Committee
Thomas A. Carr, Chair
P.O. Box 94769
Seattle WA 98124-4769

November 15,2007

Lt. Governor Brad Owen, President of the Senate
Representative Frank Chopp, Speaker, House of Representatives
Senator Darlene Fairley, Chair, Committee on Government Operations and Elections

RE: Annual Report ofthe Public Records Exemptions Accountability Committee

The Public Records Exemptions Accountability Committee - or "Sunshine Committee" - was
created by Substitute House Bill 5435 in 2007.
In that bill, the Legislature stated that in light of the changing nature of information technology,
recordkeeping, and the increasing number of public disclosure exemptions, periodic reviews of
public disclosure exemptions are needed to determine if exemptions continue to serve the public
interest. For this reason, the Legislature established the Committee to review all public
disclosure exemptions, and make a recommendation to the Legislature as to whether each
exemption should be continued without modification, modified, scheduled for sunset review at a
future date, or terminated.
The Legislature called for an annual report on the Committee's recommendations. This is the
first report, and summarizes the Committee's work since its members were appointed in August
2007.
The following individuals were appointed to the Committee by the Governor, Legislature,
Attorney General, and State Auditor:
Chair, Thomas A. Carr, Seattle City Attorney
Senator Adam Kline
Senator Pam Roach
Representative Lynn Kessler
Representative Jay Rodne
Timothy D. Ford, Assistant Attorney General
John Hughes, President of Allied Daily Newspapers of Washington

October 25, 2007
Page 2

Ken Bunting, Associate Publisher, Seattle Post-Intelligencer
Frank Garred, retired newspaper publisher
Roselyn Marcus, Director of Legal Affairs, Office of Financial Management
Patience Rogge, Washington Library Association
Ramsey Ramerman, Foster Pepper PLLC
Candy Jackson, NATIVE Health of Spokane
The Committee has held four meetings. For 2008, the Committee anticipates adopting a regular
meeting schedule to meet monthly during calendar year 2008.
Information about the Committee and its work is available to the public on the internet at
www.atg.wa.gov/opengovernment/sunshine.aspx. The Committee posts its agenda for the next
meeting on the website. In addition, the website invites citizens to join a listserve so that they
will receive a notification when new material is posted on the website.
TVW, the state's public affairs television broadcaster, has filmed each meeting, and the website
contains links to the TVW website so that the public can watch tapes of previous meetings.
As required by the legislation, the Committee has adopted and published criteria for reviewing
exemptions. A copy of the Committee's criteria is attached to this Report.
The Committee has also adopted a schedule for reviewing exemptions. The current schedule is
posted on the Committee's website. We anticipate that the Committee will continue to amend
the schedule.
The Committee meetings have been well attended. The Committee recognizes the importance of
public comment, and will continue its efforts to provide notice to the citizenry of the
Committee's meeting agenda in order to encourage citizen participation and comment. For
example, prior to the two meetings at which the Committee considered specific exemptions,
Committee staff attempted to identify groups that might have an interest in these specific
exemptions, and provided email notice to them that the Committee would be taking public
comment. The Committee posted on its website research on each exemption that had been
prepared by Committee staff. The Committee was pleased that many individuals stepped
forward to provide information and input to the Committee on these specific exemptions.
The Committee has received staff assistance from the Attorney General's Office and the Office
of Financial Management, as directed by the legislation establishing the Committee. No money
was appropriated to these agencies to provide this support, and the Committee has requested
more staff time than was originally anticipated. The Committee urges the Legislature to approve
a supplemental appropriation to fund the staff support these two agencies have been providing
the Committee.

October 25, 2007
Page 3

The Committee considered four exemptions in public hearings in its October and November,
2007 meetings:
I) Information regarding the purchases, sales, or production of an individual ginseng dealer
or grower that is held by the Department Agriculture;
2) The definition of "public record" to the extent that it exempts legislative records;
3) Information used to conduct infant mortality reviews that identifies individual cases and
sources of information;
4) Applications for public employment, including resumes and related materials.
With respect to the legislative exemption, the committee received a letter signed by the leaders of
the House and Senate asking that the Committee defer consideration pending the Washington
Supreme Court's consideration of the question whether there is a constitutional basis for the
legislative privilege in the Washington.
With respect to the other three exemptions, the Committee reviewed the legislative history to
determine the original intent behind these exemptions. The Committee also took public
comment on these exemptions. The Committee is currently in the process of deliberating what
recommendations to make to the Legislature regarding these exemptions.

Very Truly Yours,

Thomas A. Carr, Chair
Public Records Exemptions Accountability Committee

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CRITERIA FOR REVIEWING SELECTED EXEMPTIONS
Approved at November 6, 2007 Committee meeting

0

I)

Is the exemption narrowly crafted?
a) The Public Records Act mandates disclosure unless the records fall within
specific exemptions which "exempts or prohibits disclosure of specific
information or records." RCW 42.56.070.
b) Exemptions are construed narrowly. RCW 42.56.030.

0

2)

Is the exemption of information or records implied?
a) Agencies and parties may only rely on exemptions that are expressly
authorized by statutory or constitutional provisions. RCW 42.56.070.

0

3)

Is the exemption codified under RCW 42.56?
a) If not, is there a conflict between the mandate of disclosure under RCW 42.56,
and the required non-disclosure of specific information or records under the
other statute?
b) Should the exemption be re-codified or amended to specifically reference
RCW 42.56?

0

4)

Is the exemption mandatory?
a) Agencies are required to exercise discretion and redact specific information.
RCW 42.56.070; RCW 42.56.210. "[T]he exemptions of this chapter are
inapplicable to the extent that information, the disclosure of which would
violate personal privacy or vital governmental interests, can be deleted from
the specific records sought." RCW 42.56.210.
b) Should the exemption identify a specific vital government interest? The
Legislature's "choice of the word 'vital' must be given due respect." AGLO
1976 No. 47.
c) Should the exemption be amended to allow the agency discretion to redact
certain information?

D

5)

Could the exemption include statistical information?
a) No exemption may be construed to permit the nondisclosure of statistical
information not descriptive of any readily identifiable person or persons.
RCW 42.56.210.

0

6)

Is the application of the exemption time-limited? If not, can it be time limited?

0

7)

Can the exemption be clarified?

0

8)

Does the exemption continue to be necessary given the passage of time and
changes in government or policy interests?

D

9)

Does withholding or release of the record put an individual's safety at risk?

0

10)

Does the withholding or release of the record put an individual's or
organization's .privacy at risk?
a) "Invasion of privacy" is defined in the Public Records Act as where
disclosure of information about a person would be (I) highly offensive to a
reasonable person; and (2) is not oflegitimate concern to the public.
RCW 42.56.050.
b) It is not enough that disclosure of such personal information "may cause
inconvenience or embarrassment to public officials or others."
RCW 42.56.550(3).
c) "[T]he use of a test that balances the individual's privacy interest against the
interest of the public in disclosure is not permitted." Dawson v. Daly, 120
Wn.2d 782, 795 (1993) (citing Brouillet v. Cowles Publ'g Co., 114 Wn2d
788,798 (1990».
d) There is no general exemption just for "privacy" under RCW 42.56. The
Public Records Act does "not create any right of privacy beyond those rights
that are specified in this chapter as express exemptions". RCW 42.56.050.
e) There are five sections in RCW 42.56 that specifically reference "privacy".
RCW 42.56.050; .070; .210; .230; .240.

0

11)

Does the withholding or release of the record put an individual's or
organization's financial interest at risk?

D

12)

Does the withholding or release of the record put safety ofthe general public at
risk?

D

13)

Does the withholding or release of the record promote a vital government
interest/function?

D

14)

Is there doubt about an exemption's applicability to specific information?
a) Where there is reasonable doubt regarding the applicability of an exemption to
specific records or information, disclosure should be required.
b) No public agencies or officials "shall be liable, nor shall a cause of action
exist, for any loss or damage" for disclosure of public records based upon a
"good faith" effort to comply with the Public Records Act. RCW 42.56.060.

D

15)

How does the exemption affect government accountability?

D

16)

Is the withholding or release of the record directed by federal law or state
constitution?

CRITERIA FOR REVIEWING SELECTED EXEMPTIONS
Approved at November 6, 2007 Committee meeting

0

I)

Is the exemption narrowly crafted?
a) The Public Records Act mandates disclosure unless the records fall within
specific exemptions which "exempts or prohibits disclosure of specific
.information or records." RCW 42.56.070.
b) Exemptions are construed narrowly. RCW 42.56.030.

0

2)

Is the exemption of information or records implied?
a) Agencies and parties may only rely on exemptions that are expressly
authorized by statutory or constitutional provisions. RCW 42.56.070.

0

3)

Is the exemption codified under RCW 42.56?
a) If not, is there a conflict between the mandate of disclosure under RCW 42.56,
and the required non-disclosure of specific information or records under the
other statute?
b) Should the exemption be re-codified or amended to specifically reference
RCW 42.56?

0

4)

Is the exemption mandatory?
a) Agencies are required to exercise discretion and redact specific information.
RCW 42.56.070; RCW 42.56.210. "[T]he exemptions of this chapter are
inapplicable to the extent that information, the disclosure of which would
violate personal privacy or vital governmental interests, can be deleted from
the specific records sought." RCW 42.56.210.
b) Should the exemption identify a specific vital government interest? The
Legislature's "choice of the word 'vital' must be given due respect." AGLO
1976 No. 47.
c) Should the exemption be amended to allow the agency discretion to redact
certain information?

0

5)

Could the exemption include statistical information?
a) No exemption may be construed to permit the nondisclosure of statistical
information not descriptive of any readily identifiable person or persons.
RCW 42.56.210.

0

6)

Is the application of the exemption time-limited? If not, can it be time limited?

0

7)

Can the exemption be clarified?

D

8)

Does the exemption continue to be necessary given the passage of time and
changes in government or policy interests?

0

9)

Does withholding or release of the record put an individual's safety at risk?

0

10)

Does the withholding or release of the record put an individual's or
organization's privacy at risk?
a) "Invasion of privacy" is defined in the Public Records Act as where
disclosure of information about a person would be (I) highly offensive to a
reasonable person; and (2) is not oflegitimate concern to the public.
RCW 42.56.050.
b) It is not enough that disclosure of such personal information "may cause
inconvenience or embarrassment to public officials or others."
RCW 42.56.550(3).
c) "[T]he use of a test that balances the individual's privacy interest against the
interest of the public in disclosure is not permitted." Dawson v. Daly, 120
Wn.2d 782, 795 (1993) (citing Brouillet v. Cowles Publ'g Co., 114 Wn2d
788,798 (1990»).
d) There is no general exemption just for "privacy" under RCW 42.56. The
Public Records Act does "not create any right of privacy beyond those rights
that are specified in this chapter as express exemptions". RCW 42.56.050.
e) There are five sections in RCW 42.56 that specifically reference "privacy".
RCW 42.56.050; .070; .210; .230; .240.

D

II)

Does the withholding or release of the record put an individual's or
organization's financial interest at risk?

0

12)

Does the withholding or release of the record put safety of the general public at
risk?

D

13)

Does the withholding or release of the record promote a vital government
interest/function?

0

14)

Is there doubt about an exemption's applicability to specific information?
a) Where there is reasonable doubt regarding the applicability of an exemption to
specific records or information, disclosure should be required.
b) No public agencies or officials "shall be liable, nor shall a cause of action
exist, for any loss or damage" for disclosure of public records based upon a
"good faith" effort to comply with the Public Records Act. RCW 42.56.060.

0

15)

How does the exemption affect government accountability?

D

16)

Is the withholding or release of the record directed by federal law or state
constitution?