§6.7 REVIEWING RECORDS FOR EXEMPTIONS
The "PRA's mandate for broad disclosure is not absolute." Resident Action Council v. Seattle Hous. Auth. (RAC), 177 Wn.2d 417, 432, 300 P.3d 376 (2013), republished as amended, 327 P.3d 600 (2014). The general purpose of the exemptions to the Act's broad mandate of disclosure is to "exempt from public inspection those categories of public records most capable of causing substantial damage to the privacy rights of citizens or damage to vital functions of government." Ameriquest Mortg. Co. v. Office of Attorney Gen., 177 Wn.2d 467, 486, 300 P.3d 799 (2013) (quoting Limstrom v. Ladenburg (Limstrom II), 136 Wn.2d 595, 607, 963 P.2d 869 (1998)); see also Laws of 2007, ch. 198, §1 ("The legislature recognizes that public disclosure exemptions are enacted to meet objectives that are determined to be in the public interest."). These exemptions serve as the exclusive limitation on the broad mandate of disclosure—a public record may only be withheld if "the record falls within the specific exemptions of [the Act], or other statute which exempts or prohibits disclosure of specific information or records." Limstrom II, 136 Wn.2d at 604 (quoting RCW 42.56.070(1)).
This section will address the basic process for how a public records officer can determine if an exemption applies and whether to redact or withhold an entire record. Finally, it will discuss the requirements for informing the requestor that an exemption is being applied.
(1) Avoiding the consideration of exemptions
The application of PRA exemptions is a "difficult area of the law" with a "complex and often confusing statutory framework. "RAC, 177 Wn.2d at 431, 435. An erroneous decision to redact or withhold a record can lead to negative consequences, including a loss of public accountability and public trust, and a significant amount of taxpayer dollars paid out as penalties and costs. Therefore, any exemption decision needs careful consideration.
(a) An agency may only redact or withhold a record if authorized by an exemption that will be narrowly construed to serve the legislature's intent
Unlike some other states, "the [Washington State] Legislature has never adopted an all-purpose or open-ended exemption." Prog. Animal Welfare Soc'y v. Univ. of Wash. (PAWS II), 125 Wn.2d 243, 258 n.6, 884 P.2d 592 (1994). Rather, the exemptions in the PRA are generally "precise," "highly specific, limited and carefully crafted." Id. "Disclosure is therefore mandated unless the agency can demonstrate proper application of a statutory exemption to the specific requested information; the agency bears the burden of proof." Sargent v. Seattle Police Dep't., 179 Wn.2d 376, 385-86, 314 P.3d 1093 (2013). Moreover, "the PRA explicitly declares its disclosure provisions 'shall be liberally construed and its exemptions narrowly construed.'" Cornu-Labat v. Pub. Hosp. Dist. No. 2, 177 Wn.2d 221, 229, 298 P.3d 741 (2013) (quoting RCW 42.56.030). Even when an exemption may apply based on its plain language, it should only be applied when disclosure "would violate personal privacy or vital governmental interests" or a "vital government function." RCW 42.56.210(1), (2). Courts favor "workable bright-line tests" for exemptions rather than "uncertain guidelines" that require a "fact-specific inquiry." See Sargent, 179 Wn.2d at 390 (applying "workable bright-line test"); Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 414, 259 P.3d 190 (2011) (adopting bright-line test rather than uncertain guidelines). Does v. King County, 192 Wn.App. 10, 27-28, 366 P.3d 936 (2015) (third party could not meet its burden of proving disclosure would interfere with effective law enforcement under RCW 42.56.240(1) by relying on broad policy arguments about how disclosure could have a chilling effect on the willingness of witnesses to cooperate with police investigations).
The mandate for "narrow construction" is only a tool, not a goal. "The general mandate that the [PRA] be liberally construed does not permit us to ignore the plain language of [a] specific public disclosure exemption." Bldg. Indus. Ass'n v. Dep't of Labor & Indus., 123 Wn.App. 656, 666, 98 P.3d 537 (2004), review denied, 154 Wn.2d 1030 (2005). "It is well-settled that we interpret statutes to avoid absurd results," and thus courts will reject a narrow interpretation when "[s]uch a narrow reading of [an exemption] would ignore" the legislature's intent when it enacted the exemption. Nw. Gas Ass'n v. Wash. Utils. & Transp. Comm'n, 141 Wn.App. 98, 119, 168 P.3d 443 (2007), review denied, 163 Wn.2d 1049 (2008). Thus exemptions will be "narrowly tailored to specific situations in which [the legislature has determined that] privacy rights or vital governmental interests require protection." RAC, 177 Wn.2d at 433; see also id. at 435 (noting that the court's "interpretation of the scope of a given categorical exemption often will depend at least in part on its apparent purpose[]" which will "depend[] upon a case-by-case evaluation of the need to protect a particular privacy right or vital governmental interest").
But when "[n]either the plain language of the statute, nor any reasonable interpretation of its terms" supports an application of an exemption, an agency cannot rely on general policies to justify a broad application of the exemption, which may undermine the legislative intent. Koenig v. City of Des Moines, 158 Wn.2d 173, 181, 142 P.3d 162 (2006) (citation omitted). Finally, because "[t]he disclosure of public records [is the] primary objective" the PRA uses to maintain accountability, and because the public interest is usually best served by the "free and open examination of public records," an agency withholding a record may have a heavy burden to justify it. Koenig, 158 Wn.2d at 181, 187 (noting primary objective); Sargent, 179 Wn.2d at 385.
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The "narrow construction" requirement should not be applied to contradict the plain language of an exemption. Some exemptions, usually those found in an "other statute" under RCW 42.56.070(1), are broadly worded. For example, in West v. Dep't of Licensing, 182 Wn.App. 500, 331 P.3d 72 (2014), the exemption specifically protected information submitted by tribes seeking fuel-tax refunds from the state. When the state withheld not only the tribe's request for a refund, but also the amount of the refund payment actually made to the tribe, the requestor sued, arguing that the exemption only applied to the tribe's request, not the responsive records created by state. The court rejected that interpretation as "too restrictive" because the purpose of the exemption was to protect taxpayer information—the refund request. Id. at 508. Disclosure of the refund amount would disclose that statutorily protected information. The court distinguished Bainbridge Island Police Guild, 172 Wn.2d 398, because in Bainbridge Island, the city was trying to protect information not covered by the exemption that might allow the requestor to determine the exempt information, while in West, 182 Wn.App. at 508-09, the record at issue—the refund payment—directly corresponded to the information covered by the exemption—the refund request. In Planned Parenthood of Great Northwest v. Bloedow, 187 Wn.App. 606, 350 P.3d 660 (2015), the exemption in RCW 43.70.050 provided that "data in any form where the .... provider of health care can be identified shall not be disclosed." The purpose of this exemption was to "ensure health care providers submit accurate and complete health information." Planned Parenthood, 187 Wn.App. at 629. The requestor requested statistical data about a healthcare provider he believed performed abortions. The state collected data about abortions and created separate spreadsheets for each separate provider, but did not specifically identify the provider on the actual spreadsheet. The requestor therefore argued that the spreadsheets were not exempt because they only contained statistical information without identifying any specific provider. The court concluded that the spreadsheet was exempt because any disclosure would confirm the data was from the provider specified in the request. The court looked to the intent of the exemption—to protect information "in any form" that could be used to identify a provider—to distinguish the case from Koenig, 158 Wn.2d at 181, where, in the statutory exemption, the legislature enumerated the specific identifying information that was exempt, rather than adopting a broader protection for any information that could be used to identify the provider. Planned Parenthood, 187 Wn.App. at 624-25. |
A public records officer considering applying an exemption should be very hesitant to do so when it requires a novel or broad interpretation of the exemption that goes beyond the plain language of the exemption or does not serve the intended public interest.
(b) Agencies are usually not required to assert exemptions
A public records officer can avoid difficult exemption determinations by only considering whether disclosure of a record might harm a public interest. If disclosure will not do so there is usually no reason to even look for a potential exemption.
Most exemptions are "permissive rather than mandatory." WAC 44-14-06002 (quoting AGO 1980 No. 1, at 4-6 (Jan. 3, 1980) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979), and rejecting contrary statement in AGO 1973 No. 4 (Jan. 19, 1973)); see also Laws of 1987, ch. 403, §5(1) (changing burden of proof for an exemption from "required" to "exempts or prohibits"). See generally Corey v. Pierce County, 154 Wn.App. 752, 765-67, 225 P.3d 367, review denied, 170 Wn.2d 1016 (2010) (rejecting claim that PRA created a cause of action for releasing exempt records). Rather than mandate agencies withhold all exempt records, the PRA immunizes agencies that release records in good...
