H-1208

AN ACT Relating to the disclosure of information from public records by state and local agencies; amending RCW 29.36.013, 42.17.310, and 42.17.311; adding a new section to chapter 29.04 RCW; adding a new section to chapter 42.17 RCW; adding a new chapter to Title 40 RCW; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. INTENT. The legislature finds that persons attempting to escape from actual or threatened domestic violence frequently establish new addresses in order to prevent their assailants or probable assailants from finding them. The purpose of this chapter is to aid such persons by enabling them to participate in a state program which will restrict the circumstances under which public records containing their new addresses may be disclosed.

NEW SECTION. Sec. 2. DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Address" includes a residential address, school address, or work address. However, it does not include the work address of an agency employee.

(2) "Agency" means a state agency and a local government.

(3) "Protected record" means address information that is in a public record in the custody of an agency and that is subject to disclosure restrictions under section 5 of this act.

(4) "Public record" has the definition in RCW 42.17.020.

NEW SECTION. Sec. 3. APPLICATION FOR CERTIFICATE AUTHORIZING PROTECTED RECORD STATUS. An adult person, a parent or guardian acting on behalf of a minor, or a guardian acting on behalf of an incapacitated person, as defined in RCW 11.88.010, may apply to the secretary of state for a certificate authorizing the person to obtain the restrictions on public records disclosure specified in this chapter. The secretary of state shall approve an application if it is filed in the manner and on the form prescribed by the secretary of state and if it contains:

(1) A designation of the address or addresses for which authorization to obtain restrictions on disclosure is being requested;

(2) A sworn statement by the applicant that the applicant has good reasons to believe (a) that the applicant, or the minor or incapacitated person on whose behalf the application is made, is under serious threat of becoming a victim of domestic violence as defined in RCW 10.99.020; (b) that the restrictions on disclosure provided under this chapter would reduce the risk of such victimization; and (c) that the address or addresses designated in subsection (1) of this section have been established, or will be established, at least in part to avoid detection and victimization;

(3) A designation of the secretary of state as agent for purposes of service of process; and

(4) The signature of the applicant and of any individual or representative of any office designated in writing under section 11 of this act who assisted in the preparation of the application.

NEW SECTION. Sec. 4. ISSUANCE OF CERTIFICATE AUTHORIZING PROTECTED RECORD STATUS--DURATION. (1) Upon approval of an application under section 3 of this act, the secretary of state shall issue a certificate to the applicant granting to the applicant authority to obtain disclosure restrictions on the address or addresses specified in the application. The certificate shall contain the name of the person issued the certificate; the name of the person for whom it is issued, if different than the person to whom it is issued; and each address to which the certificate applies.

(2) A certificate is effective for a period of four years following its issuance, except under the following circumstances:

(a) The certificate will become ineffective if, and as of the time that, the person for whom the certificate is granted obtains a change of name; and

(b) A change in any address listed on the certificate will render the certificate ineffective with respect to that address as of the time of change.

(3) A certificate obtained through false information is void.

NEW SECTION. Sec. 5. USE OF CERTIFICATE TO OBTAIN PROTECTED RECORD STATUS--RESTRICTIONS ON DISCLOSURE. (1) An agency that is presented with a certificate in accordance with the rules specified in this section may not, after the effective date and time specified in subsection (3) of this section, disclose an address of a person listed on the certificate. An agency that violates this subsection is subject to liability under section 9 of this act. This section does not apply to the extent that the certificate is ineffective under section 4 of this act; if disclosure is provided in compliance with section 6, 7, or 8 of this act; or if this chapter does not apply under section 13 of this act.

(2) A person issued a certificate may create a protected record by filing the certificate with the agency that will have custody of the new address information for which protected record status is desired and requesting the agency to restrict access to that address information. With respect to local governments, the certificate may be filed with the local government unit, if any, that is required by state law to have custody of the record, such as the county auditor with respect to voter registration records. For types of public records for which state law does not require a particular local unit to have custody, the legislative authority of a local government that is a county, city, or town and the governing body of any other local government, may adopt a list specifying the appropriate unit or units within the local government where certificates must be filed. In any instance where a local government does not have such a list identifying the appropriate unit, then a certificate may be filed with any unit of the local government.

(3) The secretary of state shall adopt rules requiring agency acknowledgement of certificate presentation and prescribing the date on and time at which the filed certificate will be effective in creating the protected record. As determined by the secretary, such date and time may vary for different agencies or types of public records.

(4) A certificate may not be used to transform an existing public record into a protected record. A certificate may only be used to create protected record status with respect to a person's address if that address with the name of that person as addressee, is not, at the time of presentation of the certificate, included in a public record of the state agency or appropriate local government division, department, or unit which is presented with the certificate.

NEW SECTION. Sec. 6. WHEN DISCLOSURE RESTRICTIONS ARE INAPPLICABLE. The restrictions on disclosure of address information specified in a certificate issued under this chapter do not apply to:

(1) Disclosure to another agency when provided in compliance with section 7 of this act;

(2) Disclosure to a business when provided in compliance with section 8 of this act;

(3) Disclosure authorized in writing by the person to whom or for whom a certificate is issued;

(4) Disclosure of information contained in:

(a) Criminal history reports produced or provided under chapter 43.43 RCW;

(b) Notifications to crime victims provided under chapters 7.68, 9.94A, and 10.97 RCW;

(d) Voter registration records, except for absentee voter address records as provided under section 16 of this act; and

(e) Campaign finance reports filed under chapter 42.17 RCW.

NEW SECTION. Sec. 7. RULES FOR INTERAGENCY DISCLOSURE OF PROTECTED RECORDS. An agency that provides protected record information to another agency shall notify the receiving agency at the time of providing the information that the records are protected. The agency provided this notice shall restrict access to the protected records to the same extent as the agency providing the notice. Any agency that violates this section is subject to liability under section 9 of this act.

NEW SECTION. Sec. 8. RULES FOR BUSINESS USE OF PROTECTED RECORDS. (1) An agency may enter into an agreement with a business involved in the transfer, sale, or purchase of real property and under which the agency will provide protected records to the business. An agency may only enter into such an agreement if the agency finds that the following requirements are satisfied:

(a) The agreement specifies the proprietary purpose or purposes for which the protected records are requested and contains provisions designed to assure that protected record will be used for no other purpose or purposes;

(b) The purpose or purposes for which the protected records are requested are not contrary to the purpose of this chapter and preserving the confidentiality of address information;

(c) The business is authorized to conduct business in this state and the protected records requested are in a category of records that the business can be expected to need for purpose of conducting its real property-related business activities;

(d) The agreement contains adequate safeguards to assure that the business will use the protected records only for the purpose or purposes specified in the agreement and will not disclose the protected records except as expressly authorized under the agreement;

(e) The agreement contains a promise by the business that the business will not disclose protected record information received under the agreement to any person or entity not named in the agreement without first securing written permission from the person to whom the certificate is issued;

(f) The agreement contains a promise by the business that it will allow and cooperate with any investigation by the agency to determine whether the business has complied with the agreement; and

(g) The agreement contains the signature, full legal name, and address of the authorized representative of the business entering into the information-sharing agreement.

(2) The agency may conduct a background check on a business requesting an agreement under this section, and verify the accuracy of all information provided by the business and relating to the business's request for the agreement.

(3) An agency disclosing protected records under an agreement shall maintain a file containing the agreement and showing each protected record disclosed under the agreement. The agency shall maintain the file for a period of five years following the termination of the agreement and for whatever additional period of time is required under laws governing retention of public records.

(4) Any business that makes representations that it knows to be false in order to secure an agreement under this section or to obtain protected records from an agency under this section or that violates any provision of its agreement is in violation of this chapter and subject to subsection (5) of this section and to liability under section 9 of this act.

(5) Whenever an agency finds that a business that has entered into an agreement under this section has violated this chapter, the agency may revoke the agreement. Also, it may suspend the agreement and/or restrict or prevent future protected record access under the agreement until the agency is satisfied that corrective action has been taken to ensure compliance with this chapter.

(6) The legislative authority of a local government that is a county, city, or town, and the governing body of any other local government, shall specify the appropriate unit or units of the local government that may contract under this section on behalf of the local government.

NEW SECTION. Sec. 9. LIABILITY FOR VIOLATION OF CHAPTER. (1) Any person who sustains any damages that result from a disclosure of address information in violation of this chapter may bring an action in superior court against the violator to recover the damages. In any such action, the court also may award to the person civil penalties not exceeding five hundred thousand dollars and the cost of the suit, including reasonable investigative and attorneys' fees.

(2) An action may be filed by the aggrieved person or by the attorney general or county prosecuting attorney, on behalf of the person.

NEW SECTION. Sec. 10. PENALTY FOR FALSE APPLICATIONS. Any person who files or prepares an application under section 3 of this act, knowing that the application is false, is punishable under RCW 40.16.030 or other applicable statutes.

NEW SECTION. Sec. 11. CHAPTER ADMINISTERED BY SECRETARY OF STATE‑-AGREEMENTS FOR ASSISTING APPLICANTS. (1) The secretary of state shall administer this chapter and adopt rules for its effective administration.

(2) Through interlocal or other agreements, the secretary of state may designate and authorize state and local agencies and nonprofit entities that provide counseling and shelter services to victims of domestic violence to assist applicants for a certificate under this chapter. Any assistance and counseling rendered by the office of the secretary of state or its designees to applicants shall in no way be construed as legal advice.

(3) The secretary of state shall serve as the agent for service of process on each person whose address or addresses are specified in a certificate and who is subject to disclosure restrictions under this chapter.

NEW SECTION. Sec. 12. ADDRESS INFORMATION IN APPLICATIONS NOT TO BE DISCLOSED. Public records containing the address or addresses of an applicant or person for whom an application is filed under section 3 of this act shall not be available for public inspection and copying.

NEW SECTION. Sec. 13. USE OF ADDRESS INFORMATION BY AN AGENCY‑-CHAPTER INAPPLICABLE WHEN DISCLOSURE PROHIBITED BY ANOTHER LAW--LIABILITY. This chapter does not apply to prevent an agency from using the address specified on a certificate where that use is required for the administration of agency responsibilities or the statutory duties of the agency. This chapter does not apply to address information contained in a public record if the agency is prohibited from disclosing that information under any other law. However, such an agency shall be liable for all damages caused by domestic violence and resulting from the agency's disclosure of that information in violation of that law.

NEW SECTION. Sec. 14. CAPTIONS NOT LAW. Section headings as used in this chapter do not constitute any part of the law.

Sec. 15. RCW 29.36.013 and 1987 c 346 s 10 are each amended to read as follows:

Any disabled voter ((or)), any voter over the age of sixty-five, or any voter whose address or addresses are protected records under section 16 of this act may apply, in writing, for status as an ongoing absentee voter. Each such voter shall be granted that status by his or her county auditor and shall automatically receive an absentee ballot for each ensuing election for which he or she is entitled to vote and need not submit a separate application for each election. Ballots received from ongoing absentee voters shall be validated, processed, and tabulated in the same manner as other absentee ballots.

Status as an ongoing absentee voter shall be terminated upon any of the following events:

(1) The written request of the voter;

(2) The death or disqualification of the voter;

(3) The cancellation of the voter's registration record;

(4) The return of an ongoing absentee ballot as undeliverable; or

(5) January 1st of each odd-numbered year.

NEW SECTION. Sec. 16. A new section is added to chapter 29.04 RCW to read as follows:

IDENTIFICATION OF ABSENTEE VOTER RECORDS TREATED AS PROTECTED RECORDS. The county auditor shall not include in any list provided under RCW 29.04.100, 29.04.110, 29.07.151(2), 29.07.170, 29.07.220, or 29.36.097 the address of any voter who has status as an ongoing absentee voter under RCW 29.36.013 and whose absentee voter mailing address is a protected record under chapter 40.--- RCW (sections 1 through 14 of this act).

Sec. 17. RCW 42.17.310 and 1990 2nd ex.s. c 1 s 1103 are each amended to read as follows:

(1) The following are exempt from public inspection and copying:

(a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.

(b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy.

(c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would (i) be prohibited to such persons by RCW 82.32.330 or (ii) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

(d) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.

(e) Information revealing the identity of persons who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time the complaint is filed the complainant indicates a desire for disclosure or nondisclosure, such desire shall govern. However, all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath.

(f) Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.

(g) Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, but in no event shall disclosure be denied for more than three years after the appraisal.

(h) Valuable formulae, designs, drawings, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.

(i) Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.

(j) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

(k) Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites.

(l) Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, which discloses or could be used to disclose the identity of a library user.

(m) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for (a) a ferry system construction or repair contract as required by RCW 47.60.680 through 47.60.750 or (b) highway construction or improvement as required by RCW 47.28.070.

(n) Railroad company contracts filed with the utilities and transportation commission under RCW 81.34.070, except that the summaries of the contracts are open to public inspection and copying as otherwise provided by this chapter.

(o) Financial and commercial information and records supplied by private persons pertaining to export services provided pursuant to chapter 43.163 RCW and chapter 53.31 RCW.

(p) Financial disclosures filed by private vocational schools under chapter 28C.10 RCW.

(q) Records filed with the utilities and transportation commission or attorney general under RCW 80.04.095 that a court has determined are confidential under RCW 80.04.095.

(r) Financial and commercial information and records supplied by businesses during application for loans or program services provided by chapter 43.163 RCW and chapters 43.31, 43.63A, and 43.168 RCW.

(s) Membership lists or lists of members or owners of interests of units in timeshare projects, subdivisions, camping resorts, condominiums, land developments, or common-interest communities affiliated with such projects, regulated by the department of licensing, in the files or possession of the department.

(t) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.

(u) The residential addresses and residential telephone numbers of employees or volunteers of a public agency which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees or volunteers.

(v) The residential addresses and residential telephone numbers of the customers of a public utility contained in the records or lists held by the public utility of which they are customers.

(w) Information obtained by the board of pharmacy as provided in RCW 69.45.090.

(x) Information obtained by the board of pharmacy and its representatives as provided in RCW 69.41.044 and 69.41.280.

(y) Financial information, business plans, examination reports, and any information produced or obtained in evaluating or examining a business and industrial development corporation organized or seeking certification under chapter 31.24 RCW.

(z) Financial and commercial information supplied to the state investment board by any person when the information relates to the investment of public trust or retirement funds and when disclosure would result in loss to such funds or in private loss to the providers of this information.

(aa) Financial and valuable trade information under RCW 51.36.120.

(((bb) Effective March 1, 1991, the work and home addresses, other than the city of residence, of a person shall remain undisclosed or be omitted from all documents made available for public review if that person requests in writing, under oath, that these addresses be kept private because disclosure would endanger his or her life, physical safety, or property. This provision does not in any way restrict the sharing or collection of information by state and local governmental agencies required for the daily administration of their duties. The secretary of state shall administer this provision and establish the procedures and rules that are necessary for its operation. An agency that has not been furnished with a request for confidentiality of address information is not liable for damages resulting from its disclosure of the information. For purpose of service of process, the secretary of state shall serve as agent for each person who submits a request under this subsection. A request shall be of no force or effect if the requester does not include a statement, along with or part of the request, designating the secretary of state as agent of the requester for purposes of service of process.))

(2) Except for information described in subsection (1)(c)(i) of this section and confidential income data exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.

(3) Inspection or copying of any specific records exempt under the provisions of this section may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records is clearly unnecessary to protect any individual's right of privacy or any vital governmental function.

(4) Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

Sec. 18. RCW 42.17.311 and 1990 c 256 s 2 are each amended to read as follows:

Nothing in RCW 42.17.310(1) (t) through (v) and ((~~(bb)~~)) (aa) shall affect a positive duty of an agency to disclose or a positive duty to withhold information which duty to disclose or withhold is contained in any other law.

NEW SECTION. Sec. 19. A new section is added to chapter 42.17 RCW to read as follows:

PROTECTED RECORDS EXEMPT FROM PUBLIC DISCLOSURE ACT. Address information contained in a public record is exempt from disclosure under this chapter if the disclosure would violate chapter 40.--- RCW (sections 1 through 14 of this act).

NEW SECTION. Sec. 20. NEW CHAPTER CREATED. Sections 1 through 14 of this act shall constitute a new chapter in Title 40 RCW.

NEW SECTION. Sec. 21. EMERGENCY CLAUSE. Sections 17 and 18 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.