Washington Supreme Court Misses an Opportunity in Public Records Act Decision

The Washington Supreme Court on May 9, 2013 issued a decision in a Public Records Act (PRA) (chapter 42.56 RCW) matter that is particularly noteworthy for local government officials and employees. In that decision, Resident Action Council v. Seattle Housing Authority, the court held that the Seattle Housing Authority (SHA) violated the PRA by applying exemptions under the PRA too broadly and not making available information and records that were responsive to the request. For a couple of reasons, I find this decision to be imprecise and a missed opportunity.

One, as noted by Justice Madsen in her concurring opinion, “the majority answers questions that the court was not asked to decide and on which no briefing was provided.” As Justice Madsen points out, the court majority went far beyond reviewing the trial court’s actions, for example, by outlining and charting procedures the court thinks an agency should follow in responding to a PRA request, and by classifying various provisions of the PRA that were unrelated to the issues presented in the case.

Of particular note is an appendix that includes a "list of the 141 current PRA exemptions, preliminarily sorted into relevant types." The court recognizes that further review of its sorting of the exemptions "may also disclose that an exemption listed in one group has been sorted incorrectly and actually belongs in another group." I think the detailed explanations in the lead opinion regarding exemptions may be quite confusing to some because the court's distinction between "conditional" and "categorical" exemptions is novel and will likely be unfamiliar to many agencies, and given the court's acknowledgement that it has potentially sorted some of the exemptions incorrectly.

Two, I think the way the court describes and explains the PRA process is imprecise and may lead to confusion. Specifically, I take issue with the court’s use of the word “required” related to exemptions. For example, in the first paragraph of the decision, the court refers to the PRA requiring redaction of exempt information. A key point that I think is missing here is that there is an important distinction between an “exemption” and a “prohibition” to disclosure or production under the PRA. The PRA refers to both terms and there is a distinction between them. See, e.g., RCW 42.56.070(1), (2), RCW 42.56.080, RCW 42.56.230(4).

This distinction is explained in the “model rules” that have been developed by the Office of the Attorney General to provide guidance on how to interpret and implement the PRA. Although courts in interpreting and applying the PRA aren’t required to follow the model rules, they often look to the rules for guidance and at times cite to those rules in issuing their decisions. On this issue, for example, the model rules in WAC 44-14-06002 explain:

Exemptions are “permissive rather than mandatory.” AGO 1980 No. 1, at 5. Therefore, an agency has the discretion to provide an exempt record. However, in contrast to a waivable “exemption,” an agency cannot provide a record when a statute makes it “confidential” or otherwise prohibits disclosure. For example, the Health Care Information Act generally prohibits the disclosure of medical information without the patient’s consent. RCW 70.02.020(1). If a statute classifies information as “confidential” or otherwise prohibits disclosure, an agency has no discretion to release a record or the confidential portion of it. [See AGO 1986 No. 7.] Some statutes provide civil and criminal penalties for the release of particular “confidential” records. See RCW 82.32.330(5) [current RCW 82.32.330(6)] (release of certain state tax information a misdemeanor).

The practical result of this distinction is that if a PRA exemption applies, for example, to information in a public record, the agency will redact that information when it makes the record available to a PRA requester but the agency is not required to redact the information. However, if information in a record is prohibited from disclosure, the agency is prohibited from making that information available to a PRA requester and the agency could be subject to a civil penalty or liability if it provides that information to the requester.

In sum, although the court in Resident Action Council v. Seattle Housing Authority went to great lengths to describe how exemptions are applied, unfortunately the court didn't make a distinction between exemptions and prohibitions to disclosure. By not making this distinction, I think the court missed the opportunity to clarify an issue that is confusing to many. Perhaps a future court decision will provide additional clarity on this issue, but for now an opportunity has passed. Regardless, I think the court in Resident Action Council v. Seattle Housing Authority offers useful guidance, especially when one considers that guidance in the context of the distinctions I discuss above.