PRA Restriction on Providing Lists of Individuals for Commercial Purposes – More Updates

The Public Records Act (PRA) restricts agencies from providing lists of individuals for a commercial purpose as provided in RCW 42.56.070(9). 

Earlier this year, MRSC Insight summarized a recent Court of Appeals Division II decision in SEIU 775 Healthcare v. DSHS and Freedom Foundation concerning the PRA commercial purpose restriction (See: What is an Agency’s Obligation When a Records Request May Suggest Requester’s “Commercial Purpose?”). The SEIU 775 case involved requested disclosure of lists of home healthcare workers and their contact information. As further detailed in the article, while the PRA gives no specific guidance, the Court held that an “agency must investigate when it has some indication that the list might be used for commercial purposes.” The Court found no commercial purpose in that case.

New Developments

Several developments since then concern the PRA commercial purpose restriction, the type of information requested in the SEIU 775 case, and PRA requests that might also be made for commercial purposes. Those developments include:

• Appeal Filed in SEIU Case—An appeal was filed in the SEIU 775 case; however, the State Supreme Court denied review.  
• Another PRA Commercial Purpose Restriction Case Filed—Another case involving the commercial purpose restriction was argued in the Court of Appeals Division II on September 8, 2016 (SEIU 925 v. Freedom Foundation and DSHS, Case No. 48522-2-II). That case involves a request for records about license-exempt child care providers represented by the union. The Court required supplemental briefing on the SEIU 775 decision. The Court’s decision in SEIU 925 is pending.  
• Additional PRA Commercial Purpose Restriction Cases Pending—Five other cases involving the PRA commercial purpose restriction are pending in the Court of Appeals Division II and have been consolidated under WPEA et al. v. WS Center for Children et al., Case No. 49224-5-II. The cases involve several unions that seek to enjoin disclosure of the requested information.  
• Initiative 1501 Passes—Initiative 1501 was passed by the voters on November 8 and amends the PRA to create a new exemption for sensitive personal information of vulnerable adults and in-home caregivers, which includes names, addresses, GPS coordinates, telephone numbers, and other information.
• Attorney General's Office Updating PRA Model Rules—In SEIU 775, the Court of Appeals found that a procedure suggested in a PRA Model Rule for an agency to confirm that a list was not being sought for a commercial purpose was not sufficient. The Attorney General’s Office adopted those Model Rules several years ago. The AGO is beginning the process to look at updates to those rules generally, and the SEIU 775 decision will be part of that process. Contact Nancy Krier if you would like to be on the stakeholder list.  
• Sample Affidavit Available—Following SEIU 775, agencies might consider obtaining an affidavit from a requester to establish that the requested list of individuals will not be used for a commercial purpose. A sample affidavit template can be found on the MRSC website. The template is a sample only, and may need to be adjusted by particular agencies or given the nature of particular records requests.    
• Cost Recovery Investigated—A legislative workgroup has been providing input to several legislators on various PRA provisions that may be under consideration in the 2017 legislative session. One topic involves cost recovery and whether the PRA should be amended, for example, to update provisions addressing copying charges. The PRA currently provides for copy fees of $.15 cents/page or actual costs of copies. While the discussion involves possible charges for electronic records, such legislation might, for example, also impact fees when records are requested for commercial purposes.  

The above list is not exhaustive. Additional cases involving the commercial purpose restriction may be working their way through the courts.