New PRA Exemption Available to Protect Employee Safety
Editor's Note: This blog has been updated to add a sample employee communications template from the City of Bellevue.
This year, the legislature passed several bills that impact the management of public records. I’ll be reviewing most of those in a future blog, but first, I wanted to cover the bill that has generated the most questions — ESHB 1533, which amended RCW 42.56.250 of the Public Records Act (PRA) to exempt from disclosure certain information of agency employees or their dependents who are survivors of domestic violence, sexual assault, harassment, or stalking or are otherwise enrolled in the Address Confidentiality Program (ACP).
To Whom Does It Apply?
The new exemption codified at the renumbered RCW 42.56.250(1)(i) applies to two types of employees. The first are those that can provide a sworn statement that they or their dependent(s) are a survivor of:
- Domestic violence as defined in RCW 10.99.020 or RCW 7.105.010,
- Sexual assault as defined in RCW 70.125.030 or sexual abuse as defined in RCW 7.105.010,
- Stalking as described in RCW 9A.46.110 or defined in RCW 7.105.010, or
- Harassment as described RCW 9A.46.020 or defined in RCW 7.105.010.
The employee's sworn statement must explain why they have a reasonable basis to believe that the risk of domestic violence, sexual assault, sexual abuse, stalking, or harassment continues to exist. Note that the statute does not require an alleged perpetrator to be charged or convicted of any of the crimes in order for the employee to seek protection under this exemption.
The sworn statement must identify the alleged perpetrator or perpetrators by name and, if possible, image or likeness, or it must be accompanied with a copy of the police report, protection order petition, or other documentation of allegations. The sworn statement will expire every two years but can be renewed.
The second type of employee protected by the exemption are those that can provide proof of their or their dependent’s participation in the Address Confidentiality Program administered by the Washington Secretary of State. Participants of that program must renew their membership every four years.
ACP eligibility is available to survivors of domestic violence, sexual assault, trafficking, or stalking or a criminal justice affiliate, elections official, or to a protected health care worker who has been the target of threats or harassment as defined in RCW 9A.46.020 or RCW 9A.90.120 (cyber harassment).
What Information Is Exempt?
There are two separate exemptions contained within RCW 42.56.250(1)(i). The first applies to the employee’s name or other personally identifying information, including, but not limited to, birthdate, job title, addresses of workstations and locations, work email address, work phone number, bargaining unit, or other similar information. Agencies should cite to “RCW 42.56.250(1)(i)(i)” to withhold and redact this information from responsive records.
Note that this “personally identifying information” appears to be the type of information that is not otherwise already specifically exempt under the PRA. Also, this exemption only applies to information located in personnel-related records or systems, or responsive to a request for a list of individuals subject to the commercial purpose prohibition under RCW 42.56.070(8). See MRSC’s other guidance about the “commercial purposes” prohibition on the release of lists of individuals.
The second exemption applies to “any documentation maintained by an agency to administer” this exemption. This term is not defined, but we think it includes not only the sworn statements and documentation provided by the employee, but any records used by the agency to inform employees about the availability of the exemption, lists of employees that have submitted the necessary documentation, and documentation generated in the process of asserting the exemption. This exemption should be cited as “RCW 42.56.250(1)(i)(ii)” and the entire document should be withheld.
Note that per RCW 42.56.250(1)(i)(iv), the personal information exemption does not apply if the requestor is from the news media as defined in RCW 5.68.010(5). However, the exemption for documentation does not have an exception for news media — that documentation cannot be disclosed to anyone (even to the news media) without the employee’s consent.
What Are the Employer’s Obligations and Best Practices?
We recommend working with your agency attorney to develop a form and other communication templates informing employees about the exemption and its requirements as well as reviewing the process the agency will follow when it receives a request that concerns an employee’s personally identifying information. Here is an example form developed by the City of Bellevue.
Under the new statute the director of the employing agency or the director’s designee is obligated to “verify” the sworn statement. The statue defines verification as either confirming that the sworn statement identifies an alleged perpetrator or that the agency obtained the necessary documentation from the employee — see RCW 42.56.250(1)(i)(iii). Evidence of this verification may be incorporated into the form itself.
Further, the statute says that the documentation maintained by the agency is confidential. We recommend keeping this documentation in the same separate and secure manner that other confidential employee records (e.g., medical records) are kept. Any lists of employees for which this exemption will be asserted should also be treated as confidential and managed in a similar manner.
Whenever an employer receives a request for this type of personnel records, the employer should notify the impacted employee of this request, which gives the employee the opportunity to seek a court order preventing the records’ release or to gather and provide documentation showing that they qualify for the exemption. Depending on the circumstances, this may be required by the renumbered RCW 42.56.250(2) or be discretionary under RCW 42.56.540.
Employers could also explore other ways to assist employees in preventing their information from appearing in public records in the first place, such as providing an email address that does not contain their name, ensuring personal phone numbers are not used as work numbers, taking steps to limit the ability to track their physical location via IP addresses, or encouraging their participation in the Address Confidentiality Program.
Questions to Consider
What is a “personnel-related record or system?” This phrase is not defined in the statute, but at the least I believe it applies to records related to the employment relationship. This would be the typical personnel file, but also payroll documentation or other human resources databases. It may also extend to documentation that reflects work schedules, route or task assignments, or other management/supervisor communications and documents. What is not clear from the statute is whether this protects the same information located in online staff directories, department-level emergency management plans (such as on-call/response lists), and other work-related documents. As discussed earlier, the agency may want to consider devising a way to protect the identity of employees listed in such documents who may want to take advantage of this exemption.
Does the agency have to already know to whom the exemption will apply at the time the request is received? Most likely not. Washington case law says that exemptions are applied at the time the record is disclosed or withheld. See, e.g., SEIU Local 925 v. Department of Early Learning, 194 Wn.2d 546, 450 P.3d 1181 (2019). This allows agencies to inform employees of pending requests and give them the opportunity to provide the necessary documentation the agency can rely upon to assert the exemption.
What if an agency receives a request that names the employee specifically? This exemption appears to work best when responding to broad requests that do not name the employee in the request itself. If the agency responds to a specific request with a statement of the exemption authorizing the withholding and redaction of the employee’s personal information as required by RCW 42.56.210(3), the agency has essentially admitted to the requestor that the named employee does in fact work for that agency – defeating the purpose of the exemption. I have yet to see a solution to this problem, but at the very least the employee should be notified of the request as soon as possible.
As a new exemption, this new protection for employees will take some time and effort to implement. As indicated above, this is not a perfect solution, but the hope is that survivors of these acts will be able to continue to provide public service without imperiling their personal safety. If your agency has developed a sworn statement form or template, please consider sharing it with us so we may add it to our sample document library.
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