New Developments in PRA Land

The Washington State Supreme Court (Court) handed down two important Public Records Act (PRA) decisions in October, one addressing whether birth dates are exempt from public records requests and the other addressing how to apply the active and ongoing employment investigations exemption during an open PRA request.

Case #1: Wash. Pub. Emps. Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss

Reversing a 2017 Court of Appeals decision, which found a constitutional right to privacy in a public employee’s full name associated with their date of birth, the Supreme Court in Wash. Pub. Emps. Ass'n v. Wash. State Ctr. for Childhood Deafness & Hearing Loss held that neither the PRA nor the state constitution provide a protected privacy interest against disclosure of this information.

RCW 42.56.250(4)

The Court reviewed the exemption in RCW 42.56.250(4), which protects certain information in personnel and employment related records. In denying the applicability of the exemption to a public employee’s birth date, the Court noted that the statute specifically protects the birth dates of an employee’s dependents, but not the birth dates of the employees themselves. The Court explained:

We must read RCW 42.56.540(4) for what it is: a list of specifically exempted personal information, not an illustrative description of a broader, implied exemption for all personal information.

RCW 42.56.230(3)

The Court also reviewed RCW 42.56.230(3), which protects personal information in employee files to the extent disclosure would violate their right to privacy. In rejecting applicability of this exemption to an employee birth dates, the Court noted the following:

• birth dates are already readily available in the public domain;
• “the privacy protection afforded by the PRA is narrow,” extending only to matters concerning their private life, leaving “no room for including birth dates within the common law sphere of protected privacy”; and
• birth dates are often important in matters of public concern.

The Court did acknowledge that there are “legitimate concerns about the misappropriation of birth dates that echo the concerns related to Social Security numbers,” but ultimately identified this as an area for the Washington State Legislature, not the courts, to address by revising the statutory language.

Article I, Section 7 of the Constitution

The court also rejected the notion that birth dates are protected under the constitution’s right to privacy provision, stating:

[d]isclosure of birth date information is not "highly offensive" under our precedent, and it serves legitimate public interests, furthering the policy of the PRA to promote transparency and public oversight.

Key takeaway from this case: State and local agencies cannot redact their employees’ birth dates when disclosing public records — unless it’s a criminal justice employee, in which case the month and year of birth are exempt under RCW 42.56.250(8).

Case #2: Gipson v. Snohomish County

Gipson v. Snohomish County held that an agency “determines any applicable exemptions at the time the request is received,” and doesn’t have a duty to revisit records withheld or redacted in previous installments to determine whether an exemption no longer applies.

The exemption in the case applied to investigative records that are part of active and ongoing employment investigations, an exemption that was previously codified at RCW 42.56.250(5) and is now codified at .250(6). The county relied on the exemption to withhold records even though most of the installments were produced at a time during which the investigation was no longer active and ongoing.

I think a timeline is really helpful to understand the court’s decision:

• December 1, 2014: Records request received for investigation records
• February 2, 2015: Investigation ended
• February 19, 2015: Second installment produced (installment withheld records pursuant to the active and ongoing employment investigation exemption)
• March 5, 2015: Third installment produced
• April 22, 2015 Fourth installment produced
• May 4, 2015: Fifth installment produced and request closed

Here, the investigation was no longer active and ongoing at the time of the second and subsequent installment. Nonetheless, the Court upheld the county’s reliance on the active and ongoing investigation exemption to withhold records since applicability of the exemptions is determined at the time the request is received, not at the time the installments are produced. The Court noted that installments are not new, independent requests; Rather, they fulfill a single request. Thus, as explained by the Court,

[s]hould the exemption expire, and the record come into ‘existence’ after the initial request and determination, the onus is on the requestor to make a “refresher request.

Key takeaway from this case: Exemptions apply at the time the request is received and an agency does not have to review previous installments to determine if an exemption no longer applies to withheld or redacted records.

MRSC Tools to Keep You Updated on the PRA

This past year, I compiled over 30 frequently asked questions about the PRA and drafted short, to-the-point responses. This information is now posted on a dedicated Public Records Act FAQ webpage. 

We have also just recently completely revamped our Public Records Act topic page. This was a labor of love, as we have quite a bit of PRA web content and organizing it in a readable way took some time. Rather than all PRA content appearing on one single webpage (as it used to), it is now organized into distinct sections, making it much easier to navigate.