§9.3 MISCELLANEOUS EXEMPTIONS
The following statutes provide other exemptions to disclosure.
(1) Criminal Records Privacy Act
Chapter 10.97 RCW is the Criminal Records Privacy Act (CRPA). The CRPA generally provides for the "completeness, accuracy, confidentiality, and security of criminal history record information." RCW 10.97.010. Criminal history record information includes "information contained in records collected by criminal justice agencies, other than courts, on individuals, consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges ...." RCW 10.97.030(1).
State and local agencies can release conviction records related to an individual. RCW 10.97.050(1). Under the CRPA, "nonconviction data" may be disclosed for certain criminal justice and research purposes, but may not be retained or reproduced to individuals, except to the person who is the subject of the record. RCW 10.97.080.
In July 2012, RCW 10.97.030 was amended to exclude "intelligence, analytical, or investigative reports and files" from the definition of "nonconviction data." RCW 10.97.030(1)(h). Therefore, nonconviction data contained in these types of records may be disclosed.
In Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 421-24, 259 P.3d 190 (2011), the Supreme Court rejected an argument that the CRPA exempts law enforcement investigative records in their entirety when those records involve cases that did not lead to a conviction. In so doing, the court noted that the police incident report at issue "did not arise from an arrest, detention, indictment, or other formal criminal charge, and would not include any 'descriptions and notations' of those events." Id. at 422. Thus, the incident report "d[id] not contain any criminal history record information beyond the individual identification" of the alleged offender. Id. The court held that RCW 10.97.080 requires only redaction of nonconviction information and does not exempt information related to the conduct of the police during an investigation. Id. at 423.
Presumably, a record that consists entirely of an individual's record of arrests, or "rap sheet," that did not lead to a conviction would be exempt as nonconviction data under the Bainbridge Island decision. But under that court's decision, the CRPA only prohibits retention and copying of nonconviction information contained within other law enforcement records, which usually would be limited to the identity of the suspect.
Even if records do contain nonconviction information, the CRPA prohibits only copying and distribution. An agency must still make the records, including nonconviction data, available for viewing and inspection. Id. at 421-22 (citing Hudgens v. City of Renton, 49 Wn.App. 842, 844-45, 746 P.2d 320 (1987), review denied, 110 Wn.2d 1014 (1988)). In addition, a law enforcement agency may at its discretion "disclose to persons who have suffered physical loss, property damage, or injury compensable through civil action, the identity of persons suspected as being responsible for such loss, damage, or injury together with such information as the agency reasonably believes may be of assistance to the victim in obtaining civil redress" even if the disclosure involves nonconviction information. RCW 10.97.070(1).
(2) Traffic accident reports
When persons involved in accidents prepare an accident report or make a written statement that is included in an accident report pursuant to RCW 46.52.080, that report or statement is exempt from disclosure in response to PRA requests but can be disclosed to others involved in the accident and other specified persons. Guillen v. Pierce County, 144 Wn.2d 696, 714-15, 31 P.3d 628, modified, 34 P.3d 1218 (2001), rev'd in part on other grounds, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003) (Guillen II). In contrast, traffic accident reports prepared by law enforcement officials are not exempt under the same statute.
Accident reports and other data collected by an agency for the purpose of participating in a federal program pursuant to 23 U.S.C. § 152 for assessment and evaluation of dangerous roads are not subject to discovery pursuant to 23 U.S.C. § 409. Thus, the reports and data are exempt from disclosure under the PRA pursuant to RCW 42.56.290. Guillen II, 537 U.S. at 144. But copies of those same accident reports are not exempt when held by the agency that originally created them unless the report was specifically prepared solely for the purposes in 23 U.S.C. § 152. Likewise, if an agency collects reports for purposes other than the purposes specified in 23 U.S.C. § 152, they are not exempt. For example, in Gendler v. Batiste, 174 Wn.2d 244, 274 P.3d 346 (2012), the Washington Supreme Court held that because the Washington State Patrol had a statutory duty independent of 23 U.S.C. § 152 to collect accident reports, it was required to produce those reports in response to a PRA request, even though its reports were retained as part of a database it shared with the Department of Transportation, which accessed and used the same data for 23 U.S.C. § 152 purposes.
(3) Driving record abstracts
Abstracts of driving records may be furnished to the individual named in the abstract and other specified entities. RCW 46.52.130. Disclosure of driving record abstracts to third parties is prohibited. Id.
(4) Terrorism
As a response to heightened security concerns after September 11, 2001, the Washington State Legislature adopted four new exemptions that address security concerns. The...
