§10.2 Relevant Exemptions

§10.2 RELEVANT EXEMPTIONS

(1) "Personal" information of public employees

RCW 42.56.230(3) is the most commonly cited exemption for personnel records. It exempts "[p]ersonal 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; ...." Id.

"Personal information" has been defined in Bellevue John Does 1-11 v. Bellevue School Dist. #405, 164 Wn.2d 199, 211, 189 P.3d 139 (2008), as "information relating to or affecting a particular individual, information associated with private concerns, or information that is not public or general ...." See also Morgan v. City of Fed. Way, 166 Wn.2d 747, 756-57, 213 P.3d 596 (2009).

As with any exemption conditioned on the violation of a person's privacy rights, this exemption must be read in conjunction with RCW 42.56.050, the statutory definition of "privacy" contained in the PRA. See Chapter 8 (Privacy) of this deskbook. RCW 42.56.230(3) only authorizes withholding "personal information" that "(1) [w]ould be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." RCW 42.56.050 (emphasis added). 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).

Under the privacy test in RCW 42.56.050, "the 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, 845 P.2d 995 (1993) (citing Brouillet v. Cowles Publ'g Co., 114 Wn.2d 788, 798, 791 P.2d 526 (1990)). Once the court determines that there is legitimate concern to the public, its inquiry ends, and the records will be disclosed notwithstanding the offensiveness of the disclosure to an individual identified in the records. City of Fife v. Hicks, 186 Wn.App. 122, 140, 345 P.3d 1 (2015). For disclosure to be of "legitimate concern to the public" it must be reasonable. Dawson, 120 Wn.2d at 797-98; see also Koenig v. City of Des Moines, 158 Wn.2d 173, 185, 142 P.3d 162 (2006).

A determination of whether disclosure would be reasonable involves a balancing of "public interest in disclosure against the public interest in the 'efficient administration of government.'" Dawson, 120 Wn.2d at 798 (citing former RCW 42.17.010(11)); see also Bellevue John Does 1-11, 164 Wn.2d 199 (discussing privacy test for release of personnel records). The burden is on the party opposing disclosure to show that public interest weighs in favor of withholding the public record. See Dawson, 120 Wn.2d at 799; cf. Lindeman v. Kelso Sch. Dist. No. 458, 162 Wn.2d 196, 202, 172 P.3d 329 (2007) (clarifying that student file exemption is limited to "the protection of material in a public school student's permanent file").

It is not necessary that the information come from a file labeled as a "personnel" file for personal information to fall under RCW 42.56.230(3). See Tacoma Pub. Library v. Woessner, 90 Wn.App. 205, 216-17, 951 P.2d 357, review granted and remanded, 136 Wn.2d 1030 (1998), and amended on remand, 972 P.2d 932 (1999) (agency-wide report on employees' benefits, which were not contained in any single employee's personnel file). The focus is on whether the information in a file is normally maintained for the employee's benefit and whether disclosure would violate the employee's right to privacy. Id. at 217.

(2) RCW 42.56.240(1) and its application for employee records

RCW 42.56.240(1) applies to "[s]pecific 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; ...."

Personnel records will generally not fall within RCW 42.56.240(1). First, that exemption applies only to records compiled by an investigative, law enforcement, or penology agency or a state agency vested with the responsibility to discipline members of any profession. State agencies vested with the responsibility to discipline a member of a profession include the Office of the Superintendent of Public Instruction—a state agency vested with disciplining certificated educators—and do not include individual employers like school districts that decide whether to discipline an employee. Second, RCW 42.56.240(1) applies only to "[s]pecific intelligence information and specific investigative records ...." Records of internal affairs investigations of police officers, or an investigation of an officer by another law enforcement agency, qualify as investigative records. Spokane Police Guild v. State Liquor Control Bd., 112 Wn.2d 30, 769 P.2d 283 (1989); see also Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 419, 259 P.3d 190 (2011); Cowles Publ'g Co. v. State Patrol, 109 Wn.2d 712, 728-29, 748 P.2d 597 (1988). But when the investigation is not performed by a law enforcement officer and the investigating body does not have the authority to impose some kind of penalty, records of an investigation that leads to discipline of public employees, even of prison staff, do not qualify for the investigative records exemption. Prison Legal News, Inc. u. Dep't of Corr, 154 Wn.2d 628, 640, 115 P.3d 316 (2005).

If the only basis for the asserted exemption is privacy, the applicability of RCW 42.56.240(1) is less relevant because often RCW 42.56.230(3), which has the same privacy test as RCW 42.56.240(1), could cover the records as well. (Cases addressing RCW 42.56.230(3) are discussed in §10.2(1), above.) In some cases where RCW 42.56.230(3) may not apply—such as requests for records made not to an employer but to a state licensing authority like the Office of Superintendent of Public Instruction—parties have argued that personnel records are exempt under RCW 42.56.240(1) as "essential to effective law enforcement." The Supreme Court has offered guidance as to what constitutes "law enforcement" for purposes of this prong of RCW 42.56.240(1) and what does not.

In Brouillet, 114 Wn.2d 788, a requestor sought records of the state teacher licensing authority regarding investigations and decertification of teachers for sexual abuse. The Superintendent of Public Instruction (SPI) asserted the records were exempt based on both the privacy and the "essential to effective law enforcement" tests of RCW 42.56.240(1). The agency presumably asserted the "essential to effective law enforcement" argument because it, unlike the privacy test, did not require the agency to prove the public lacked a legitimate concern in the information.

The court rejected the use of the test, holding:

[L]aw enforcement involves imposition of sanctions for illegal conduct. But SPI may revoke certificates for conduct which could not be illegal under the constitution, such as "immorality," "intemperance," or "unprofessional conduct." The criteria governing certificate revocations defines unprofessional conduct which can justify termination, not illegal conduct.

Finally, law enforcement involves imposition of a fine or prison term. The record in this case does not link these investigations with any SPI attempt to seek either civil or criminal penalties against the teachers. ... SPI's attempt to characterize its supervision of its employees as law enforcement is unpersuasive.

* * *

Exemptions should be narrowly construed. This principle compels the conclusion that revocation of teaching certificates is not law enforcement and that the law enforcement exemption does not apply in this case.

Brouillet, 114 Wn.2d at 796-97 (footnotes and citations omitted); see also Prison Legal News, 154 Wn.2d at 640 (discussing meaning of "law enforcement" in investigative records exemption). Anyone seeking to exempt records based on the "essential to effective law enforcement" prong of RCW 42.56.240(1) will need to show that the end result of the investigation will be the imposition of sanctions such as a fine or prison term if there is a finding of illegal conduct. See Brouillett, 114 Wn.2d at 796-97; see also Dawson, 120 Wn.2d at 793 (holding investigation of expert witness in criminal prosecution not to be "law enforcement" because witness was not being investigated for crime or malfeasance). Mere loss of a teaching certificate or workplace discipline or termination does notfall within the concept of" law enforcement." Brouillet, 114 Wn.2d at 797; see also Koenig v. Thurston County, 175 Wn.2d 837, 287 P.3d 523 (2012) (holding that victim impact statements submitted in criminal cases and Special Sex Offender Sentencing Alternative evaluations are not "investigative...