Further Guidance on Records Requests for “Commercial Purposes”
February 7, 2017
Adrian Urquhart Winder
Category: Guest Author , Court Decisions and AGO Opinions , Public Records Act
Public records for "Commercial Purposes"? The Washington Court of Appeals recently addressed another dispute and rejected a union's constitutional privacy argument.
Last year, Division II of the Washington Court of Appeals determined that the Freedom Foundation’s public records request for names and contact information of home healthcare workers was not a request for “commercial purposes.” SEIU Healthcare 775NW v. Dep’t of Soc. & Health Servs., 193 Wn. App. 377, 377 P.3d 214, review denied, 186 Wn.2d 1016 (2016). In December, the Court addressed a similar dispute over the Foundation’s request for names of childcare providers in Washington’s “Family, Friends and Neighbors” program and their “state contact” information. SEIU Local 925 v. Freedom Found., No. 48522-2-II (Dec. 20, 2016).
Washington’s Public Records Act, chapter 42.56 RCW (“PRA”), prohibits disclosure of “lists of individuals requested for commercial purposes.” RCW 42.56.070(8). The Foundation claimed that its purpose was to notify childcare providers of their right to refrain from union membership and fee payments. SEIU countered that the Foundation’s fundraising materials specifically mention its use of the lists of provider names. Largely reiterating its prior holdings, the Court held that the Foundation’s purpose was not a commercial one because the Foundation does not intend to generate revenue or financial benefit from the direct use of the information. Financial benefit garnered from mentioning the provider information to publicize the Foundation’s work was too attenuated to be a direct use.
Also in line with its prior decision, the Court rejected SEIU’s “linkage argument” – that information can become non-disclosable if it could somehow lead to other private information being tracked down from other sources. While property addresses might be the same as the locations where children live or receive childcare, the Foundation’s request did not seek the names and addresses of any specific children. The Court would not look to what information could be discovered beyond the four corners of the records requested to determine if an exemption applied.
The Court next considered SEIU’s argument that the privacy protections in article I, section 7 of the Washington constitution prohibited the release of the requested information. The Court rejected this claim, finding that:
- SEIU did not meet its burden of proving that a person’s name and contact information were historically treated as “private affairs” under the constitution;
- Representations by a state agency that information would be kept confidential did not give constitutional protection to such information;
- The situation was not analogous to the home privacy issues implicated by warrantless searches of a home; and
- The PRA provided “valid authority of law” to obtain information provided to participate in a public program.
The trial court therefore did not err by denying a permanent injunction on the basis of SEIU’s constitutional and statutory arguments.
Note: Blog posted corrected in March 2019 to reflect that the Legislature amended RCW 42.56.070 such that the correct citation for the “commercial purposes” provision is now RCW 42.56.070(8). See Laws of 2017, ch. 304, § 1.
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