Walking on Murky Waters: The New PRA Exemption for Religious Affiliation

Earlier this year, the state legislature unanimously passed HB 2097, a bipartisan civil-rights bill that prohibits state or local agencies from providing personally identifiable information that could be used to create a federal religious affiliation, national origin, or ethnicity registry for law enforcement or immigration purposes. The bill was primarily codified in Chapter 42.60 RCW, except RCW 42.56.235, which was added directly into Chapter 42.56, the Public Records Act (PRA).

RCW 42.56.235 provides:

“All records that relate to or contain personally identifying information about an individual's religious beliefs, practices, or affiliation are exempt from disclosure under this chapter.”

What is religious belief, practice, or affiliation information?

The new exemption’s fairly broad language could potentially involve hundreds of religions and practices. “Religious belief, practice, or affiliation” is not defined in the statute, but a vast amount of information and guidance for a definition is available on the internet from both religious and secular sources. To apply the exemption with confidence, you may wish to review the religious practices, symbols, and attire common within your jurisdiction.

In most instances, the religious context will be obvious from the situation, such as when a member of the public self-identifies a religious affiliation in written, public comments or when an employee requests time off to observe a religious holiday or requests an accommodation to wear religious garb. In other instances, it may be a close question. For example, the purchase order for a staff recognition event may indicate that some of the food was purchased to accommodate dietary restrictions of certain employees, which might be related to an allergy — or it might be related to a religious practice. During a public meeting, a councilmember might announce an intent to attend an upcoming event at a food pantry operated by a local church, but it is unknown whether that councilmember is also a member of that church.

If you are unsure, consider that the purpose of the exemption is to prevent the information from being used to create a religious registry. If the information would likely not be useful for such a registry, then there is less of concern in its disclosure. The safest course to take may be to utilize the RCW 42.56.520(2) notice process to give the individual the opportunity to object and obtain a court injunction.

The U.S. Equal Employment Opportunity Commission has a good webpage with examples of common religious practices that result in accommodations in the workplace.

Where might you expect to see religious belief, practice, or affiliation information?

By no means an exhaustive list, below are a few examples of records where you might expect personally identifying information to appear. Keep in mind that other exemptions may also apply to these records so be sure to indicate all the statutory reasons for withholding or redacting a record in the exemption log.

Certain personnel records

• Law enforcement officer and firefighter advance directives
• Prior employment or education at religious-affiliated institutions
• Approval of outside employment at religious-affiliated institutions
• Accommodations for religious practices or garb, including requests for time off for religious holidays
• Life insurance beneficiary designations
• Records or communications related to outside volunteer activity
• Employee ID photographs with religious garb
• Payroll deduction in support of certain charities or religious institutions

Criminal/inmate records

• Investigation reports — if an incident occurs at a religious site or is motivated by religious bias, the witnesses, victims, or perpetrators may be affiliated
• Description of a person that may include jewelry, clothing, or tattoos of religious symbols
• Inmate records that reflect religious accommodations

Student records

• Current or past enrollment at religious-affiliated institution
• Records that reflect religious accommodations or faith-based medical directives

Records or applications from a religious institution or religious-affiliated nonprofit that identify a representative as a point of contact

• Public/private partnership contracts and agreements
• Permit applications for a religious or holiday display
• Land use and building permit applications
• Utility and tax bills

Photographs or video recordings of persons

• Wearing religious garb
• Depicting religious grooming (e.g., beards or hairstyles)
• Attending events at religious institutions

Public meetings — minutes and/or video

• Video of public meeting where an individual is wearing religious garb or hairstyle
• Oral or written comment in which the individual self-identifies a religious affiliation while supporting or opposing some government action

Redact or withhold?

While the new statute does say that “all records … are exempt from disclosure,” merely redacting the personally identifying information would better meet the broad disclosure requirements of the PRA. There is no penalty under the PRA for disclosing a document that contains religious affiliation information, but there could be a penalty for improperly withholding the entire document. The course of action least likely to draw a PRA suit would be to disclose the document with redactions.

Public records professionals across the state, including the Sunshine Committee, are still working out how this new exemption should be interpreted and applied. I encourage you to reach out for guidance whenever you have a question regarding the exemption’s applicability. Ultimately, the broad disclosure requirements of the Public Records Act will have to be balanced against the civil-rights protection concerns addressed in HB 2097.

In time, the waters will clear.

Questions? Comments?

If you have comments about this blog post or other topics you would like me to write about, please email me. If you have questions about legislation impacting employee collective bargaining or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772.