PRA Requests for Lists of Individuals “for Commercial Purposes”
October 2, 2013
by
Paul Sullivan
Category:
Public Records Act
A number of jurisdictions across the state recently received a public records request from an “online information service” that was seeking documents detailing all purchases the jurisdictions had made from 2008 to present. The information requested included the name, address, contact person, and email of vendors. Part of the Public Records Act (PRA), RCW 42.56.070(9), prohibits a public agency from selling or providing access to "lists of individuals" that have been “requested for commercial purposes.” Since one could assume that the records sought here would be used for a commercial purpose, should the records requested be released? When may an agency deny a PRA request when it is "for commercial purposes"?
There are three elements that must be considered here: 1) is the request for a “list of individuals”? 2) if so, is it being requested for commercial purposes? and 3) is the release of the records nevertheless “specifically authorized or directed by law”?
What is a “list of individuals”? The answer, it would seem, should be easy, but that may not always be the case. To be a "list of individuals," the list would have to be of “natural persons ‑ as opposed to business entities, committees, or groups.” Or, so concluded the state Attorney General in AGO 1975 No. 15.
Obviously, if a jurisdiction maintains a list of residents who will receive its newsletter, that would be a “list of individuals.” Though what if a list is maintained for a different purpose but it includes names of individuals and their addresses? For example, a county assessor is required by RCW 84.14.160 to keep “a complete list of all lands or lots subject to taxation, showing the names and owners." The Attorney General concluded in AGO 1980 No. 1 that “the mere fact that this listing of such property also includes an identification of its owner (or owners) does not change its basic character,” and thus the listing did not constitute “a list of individuals.” On the other hand, the assessor is required to make “an alphabetical list of the names of all persons in the county liable to assessment of personal property.” RCW 84.40.040. The Attorney General, also in AGO 1980 No. 1, determined that this list “constitutes a 'list of individuals' . . . to the extent that those listed are natural persons rather than corporations or the like.”
Note also that a public agency is not prohibited from providing copies of or access to records that may include names and addresses of individuals, not set out in a list, even though the requesting party then uses those records to develop its own “list of individuals” for commercial purposes. AGLO 1973 No. 113.
Is the list of individuals requested for a “commercial purpose”? The Attorney General in AGO 1975 No. 15 concluded that the phrase “commercial purposes” encompasses “any ‘profit expecting’ business activity.” While a commercial purpose may include the use of the list to directly contact individuals, such as for the purpose of sending out advertisements, it also covers use for other commercial purposes. AGO 1998 N0. 2. If the request is made to assist a political campaign or a nonprofit charity, however, the prohibition would not apply, because the purpose is not commercial. (But note that, even if the use is not commercial and its release is thus not prohibited, the list may nevertheless be exempt from disclosure, such as a list of the names and addresses of utility customers. See RCW 42.56.330(2). If a record is exempt from disclosure, a public agency may nevertheless disclose that record.)
Is the release of the list specifically authorized or directed by law? There are not many instances when a list of individuals must be made available to the public, but there are some. For example, RCW 82.40.020 requires a county assessor’s real property tax rolls to be available for public inspection, and RCW 46.12.630(1) authorizes the Department of Licensing to disclose lists of registered owners of vehicles so that notice may be given of safety-related defects.
What should a jurisdiction do, if it is requested to provide a list of individuals? A jurisdiction should require the requesting party to sign a declaration that he or she will not use the list of individuals for a commercial purpose. See WAC 44-14-06002(6) and AGO 1988 No. 12 (an agency may condition access to a public record containing a list of individuals on the requester's promise that the record will not be used for a commercial purpose).
As to the matter that served as the basis for this blog, the recent request for vendor information would, in my opinion, need to be honored. While the use might be for a commercial purpose, since the records requested are not “lists of individuals,” the prohibition against disclosure does not apply.
For additional information on public records requests, see the MRSC publication, Public Records Act for Washington Cities, Counties and Special Purpose Districts.
There are three elements that must be considered here: 1) is the request for a “list of individuals”? 2) if so, is it being requested for commercial purposes? and 3) is the release of the records nevertheless “specifically authorized or directed by law”?
What is a “list of individuals”? The answer, it would seem, should be easy, but that may not always be the case. To be a "list of individuals," the list would have to be of “natural persons ‑ as opposed to business entities, committees, or groups.” Or, so concluded the state Attorney General in AGO 1975 No. 15.
Obviously, if a jurisdiction maintains a list of residents who will receive its newsletter, that would be a “list of individuals.” Though what if a list is maintained for a different purpose but it includes names of individuals and their addresses? For example, a county assessor is required by RCW 84.14.160 to keep “a complete list of all lands or lots subject to taxation, showing the names and owners." The Attorney General concluded in AGO 1980 No. 1 that “the mere fact that this listing of such property also includes an identification of its owner (or owners) does not change its basic character,” and thus the listing did not constitute “a list of individuals.” On the other hand, the assessor is required to make “an alphabetical list of the names of all persons in the county liable to assessment of personal property.” RCW 84.40.040. The Attorney General, also in AGO 1980 No. 1, determined that this list “constitutes a 'list of individuals' . . . to the extent that those listed are natural persons rather than corporations or the like.”
Note also that a public agency is not prohibited from providing copies of or access to records that may include names and addresses of individuals, not set out in a list, even though the requesting party then uses those records to develop its own “list of individuals” for commercial purposes. AGLO 1973 No. 113.
Is the list of individuals requested for a “commercial purpose”? The Attorney General in AGO 1975 No. 15 concluded that the phrase “commercial purposes” encompasses “any ‘profit expecting’ business activity.” While a commercial purpose may include the use of the list to directly contact individuals, such as for the purpose of sending out advertisements, it also covers use for other commercial purposes. AGO 1998 N0. 2. If the request is made to assist a political campaign or a nonprofit charity, however, the prohibition would not apply, because the purpose is not commercial. (But note that, even if the use is not commercial and its release is thus not prohibited, the list may nevertheless be exempt from disclosure, such as a list of the names and addresses of utility customers. See RCW 42.56.330(2). If a record is exempt from disclosure, a public agency may nevertheless disclose that record.)
Is the release of the list specifically authorized or directed by law? There are not many instances when a list of individuals must be made available to the public, but there are some. For example, RCW 82.40.020 requires a county assessor’s real property tax rolls to be available for public inspection, and RCW 46.12.630(1) authorizes the Department of Licensing to disclose lists of registered owners of vehicles so that notice may be given of safety-related defects.
What should a jurisdiction do, if it is requested to provide a list of individuals? A jurisdiction should require the requesting party to sign a declaration that he or she will not use the list of individuals for a commercial purpose. See WAC 44-14-06002(6) and AGO 1988 No. 12 (an agency may condition access to a public record containing a list of individuals on the requester's promise that the record will not be used for a commercial purpose).
As to the matter that served as the basis for this blog, the recent request for vendor information would, in my opinion, need to be honored. While the use might be for a commercial purpose, since the records requested are not “lists of individuals,” the prohibition against disclosure does not apply.
For additional information on public records requests, see the MRSC publication, Public Records Act for Washington Cities, Counties and Special Purpose Districts.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.
About Paul Sullivan
Paul worked with many local governments and authored numerous MRSC publications on local elections, ordinances, and general local government operations in his many years at MRSC. He is now retired.
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