Exemptions and Prohibitions for Local Government Records

Overview

Many public records have no disclosure restrictions and must be provided upon request. However, some records are exempt from disclosure or prohibited from disclosure (either in whole or in part) under the Public Records Act or other statutes.

PRA exemptions are set forth in RCW 42.56.230-.470. Other exemptions and disclosure prohibitions are found in various other state and federal statutes. MRSC has developed a comprehensive list of exemptions and prohibitions found in other statutes besides the PRA (see Appendix C of our Public Records Act publication); all agencies are required to publish a list of such exemptions and prohibitions found outside the PRA.

Statutory exemptions must be narrowly applied. Agencies can only redact those portions of a record to which the exemption applies and are required to produce the remainder of the record.

If a record is redacted or withheld in its entirety, the agency needs to identify the specific exemption authorizing redaction or withholding and provide a brief explanation of how the exemption applies to the withheld record. This identification is commonly done using an exemption log.

For examples that can be modified for your agency's own use, see MRSC's sample exemption log as well as the Washington Association of Public Records Officers (WAPRO) PRA Toolkit, which contains sample exemption logs, exemption keys, and exemption letters.

The PRA itself contains numerous exemptions, but a smaller number of exemptions are more commonly used by local governments. Below is a brief overview of these commonly used exemptions.

Attorney Work Product and Attorney-Client Privileged Communications

An attorney’s work product is exempt under RCW 42.56.290 and attorney-client privileged communications are exempt under RCW 5.60.060(2)(a) (considered an “other statute” which exempts or prohibits disclosure under RCW 42.56.070(1)).

Drafts

Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated are exempt under RCW 42.56.280. The exemption goes away once the record is publicly cited by an agency in connection with any given action.

Employee Hiring

The following information is exempt in the employee hiring context (RCW 42.56.250):

• Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.
• Applications for public employment, including the names of the applicants, resumes, and other related materials submitted with respect to an applicant. (However, this exemption does not apply to applications for vacancies in elective office.)

Employee/Official Personal Information

• Personal 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 is exempt (RCW 42.56.230(3)). A person’s right to privacy is invaded or violated if disclosure would: (1) be highly offensive to a reasonable person; and (2) is not of legitimate concern to the public (RCW 42.56.050).
• The following employee and volunteer information held by the agency in personnel records, public employment related records, volunteer records, or agency mailing list is exempt: residential addresses, residential telephone numbers, personal wireless numbers, personal email addresses, social security numbers, driver’s license numbers, identicard numbers, payroll deductions, and emergency contact information (RCW 42.56.250(4)).

Financial Account Numbers

RCW 42.56.230(5) exempts credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial information as defined in RCW 9.35.005 including social security numbers.

Investigative, Law Enforcement and Crime Victim Records

Some of the more commonly used exemptions under RCW 42.56.240 for investigative and law enforcement records are:

• Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies if nondisclosure is essential to effective law enforcement or for the protection of any person’s right to privacy. A person’s right to privacy is invaded or violated if disclosure would: (1) be highly offensive to a reasonable person; and (2) is not of legitimate concern to the public (RCW 42.56.050).
• The identity of crime witnesses and victims or people who file complaints with investigative, law enforcement, or penology agencies, if disclosure would endanger any person’s life, physical safety or property or if nondisclosure is requested at the time the complaint is filed.
• The identity of child victims of sexual assault who are under the age of 18.
• Body camera recordings to the extent nondisclosure is essential for the protection of any person’s right to privacy (a list of specific circumstances where public disclosure of the recording is presumed to be "highly offensive to a reasonable person" is set forth in the statute). A person’s right to privacy is invaded or violated if disclosure would: (1) be highly offensive to a reasonable person; and (2) is not of legitimate concern to the public (RCW 42.56.050). To withhold or redact the recording, the agency must also determine that the recording is "not of legitimate concern to the public."

For further information, see our Law Enforcement Records Tool Kit.

Real Estate Transactions

The following real estate-related records are exempt, but only until all properties that are part of the project have been purchased, sold, or leased or after the project is abandoned (RCW 42.56.260):

• Real estate appraisals made for or by an agency for purposes of acquiring or selling property (except no appraisal may be withheld for more than three years after creation)
• Documents prepared for the purpose of considering the selection of a site or the acquisition of real estate by purchase or lease, or for the purpose of considering the minimum price of real estate that will be offered for sale or lease, when public knowledge would cause likelihood of increased prices, including records prepared for executive session

Religious Affiliation

All records that relate to or contain personally identifying information about an individual’s religious beliefs, practice, or affiliation are exempt under RCW 42.56.235.

Recommended Resources

For more comprehensive guidance on exemptions and prohibitions, see the following resources:

• MRSC:
  • Public Records Act publication – Detailed publication offering a detailed outline of PRA, common prohibitions and exemptions, and more.
  • Knowing the Territory – Publication for elected officials which contains a chapter on the PRA which includes a section on exemptions. See Records that May Be Withheld.
• Attorney General's Office Open Government Resource Manual Chapter 2: Public Records Act - Exemptions