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Exempting or Redacting a Record? Give a Brief Explanation.


September 11, 2013 by Paul Sullivan
Category: Public Records Act

A recent state Court of Appeals decision, City of Lakewood v. Koenig, held the City of Lakewood liable for costs and attorney fees when the city redacted information from a requested public record but failed to provide a "brief explanation" for the redaction.  (The city had redacted driver's license and social security numbers, as well as date of birth information.)  Lakewood stated statutory authority for the redactions, but it gave no "brief explanation," contrary to RCW 42.56.210(3):

Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld. 

(My emphasis)

In reaching its decision, the court found that the city "did no more than identify the information that was withheld and cite the statutes that it believed exempted the information," thus violating the statutory requirement for an explanation.  This failure entitled Koenig to costs and attorney fees.

Lesson to be learned when redacting information or denying access to a record: merely citing to a statute as the basis for redacting information or exempting a record is not sufficient. You must also briefly explain how that statute applies to the information redacted or the record withheld. So, for example, if you are redacting information identifying a crime victim who has requested nondisclosure of that information pursuant to RCW 42.56.240(2), say that; don’t just say you are redacting pursuant to RCW 42.56.240(2).

I also wanted to bring your attention to footnote 3 at the end of the court's decision. While the court did not address the question of whether the city properly redacted driver's license numbers from the disclosed records, the court expressed its "concern over the legislature's failure to expressly provide adequate protection for personal identifying information in the PRA statute," despite the legislature's acknowledgement "that disclosure of such personal identifying information of such personal identifying information can be harmful to private citizens."  The court concluded: "we believe that the failure to include an express PRA exemption that impedes the crime of identity theft and protects the release of personal identifying information appears to be an unfortunate oversight but that it is up to the legislature not the courts, to address." I hope the legislature listens.

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operation. He also provides training on the Open Public Meetings Act.

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