Many public records have no disclosure restrictions and must be provided upon request. However, some records are exempt from disclosure or prohibited from disclosure (either in whole or in part) under the Public Records Act or other statutes. See MRSC's Public Records Act Basics for an overview.
Understanding "Exemptions" vs. "Prohibitions." If a record is "exempt" from disclosure, the agency has the option to disclose the record but is not required to. If a record is "prohibited" from disclosure, the agency cannot disclose the records.
PRA exemptions are set forth in RCW 42.56.230-.475. Additional exemptions and disclosure prohibitions are found in various state and federal statutes and are referred to as “other statutes.” The Code Reviser’s Office annually prepares a comprehensive list of exemptions and prohibitions contained with the RCWs. That list is presented to the Public Records Exemptions Accountability Committee (Sunshine Committee), housed within the Attorney General’s Office.
MRSC has developed a select list of exemptions and prohibitions found in federal statutes (see Appendix C of our Public Records Act publication); for informational purposes, all agencies are required to publish a list of such exemptions and prohibitions found outside the PRA (RCW 42.56.070(2)). Many agencies do so by incorporating by reference the Code Reviser’s list and MRSC’s list.
Statutory exemptions must be narrowly applied. Agencies can only redact exempted portions of records and are required to produce the remainder of the record (RCW 42.56.210(1)).
If a record is redacted or withheld in its entirety, the agency needs to identify the specific statute authorizing redaction or withholding and provide a brief explanation of how the exemption applies to the withheld record (RCW 42.56.210(3)). This identification is commonly done using an exemption log, but other methods are allowable as long as they meet the statutory requirement.
For an example that can be modified for your agency's own use, see MRSC's sample exemption log.
The PRA itself contains numerous exemptions, but a smaller number of exemptions are more commonly used by local governments. Below is a brief overview of these commonly used exemptions.
An attorney’s work product is exempt under RCW 42.56.290 and attorney-client privileged communications are exempt under RCW 5.60.060(2)(a) (considered an “other statute” that exempts or prohibits disclosure (RCW 42.56.070(1)).
Preliminary drafts, notes, recommendations, and intra-agency memorandums expressing opinions or formulating policies are exempt under RCW 42.56.280. The exemption goes away once the record is publicly cited by an agency in connection with a given action. For more, see this FAQ: Are draft documents exempt from disclosure?.
The following information is exempt in the employee hiring context (RCW 42.56.250):
RCW 42.56.230(5) exempts credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial information, including social security numbers, as defined in RCW 9.35.005. “Other financial information” includes account numbers and balances, transaction information, codes, passwords, and other information held for account access or transaction initiation.
Some of the more commonly used exemptions under RCW 42.56.240 for investigative and law enforcement records are:
The following real estate-related records are exempt, but only until all properties that are part of the record have been purchased, sold, or leased or the project is abandoned (RCW 42.56.260):
Public agencies do not have the authority to sell or provide access to lists of individuals requested for commercial purposes (RCW 42.56.070(8)). Agencies are specifically authorized to require requesters to provide information as to the purpose of the request to establish whether release would be a violation of this prohibition (RCW 42.56.080(2)). Agencies have an affirmative obligation to investigate how a requester intends to use the information. A declaration promising not to use the list for a commercial purpose is not sufficient.
This prohibition is limited to actual “lists.” It does not apply to collections of documents from which the requester could create their own list. It also only applies to “individuals.” Business entities or vendors are not considered “individuals.” Lists of other information that happen to have a person’s name associated with the entry are not considered a “list of individuals” unless the document can be sorted by name. See AGO 2019 No. 3.
Commercial purpose” is defined as a business activity by any form of business enterprise intended to generate revenue or financial benefit. See this sample Commercial Purpose Declaration Affidavit Template (2019), developed by the Washington Attorney General’s Office, which walks through multiple ways a requester might intend to generate revenue from the list.
For more comprehensive guidance on exemptions and prohibitions, see the following resources:
