S-0644.2 _______________________________________________
SENATE BILL 5340
_______________________________________________
State of Washington 54th Legislature 1995 Regular Session
By Senators Kohl, Cantu, Fraser, Prentice, Winsley and Fairley
Read first time 01/19/95. Referred to Committee on Law & Justice.
AN ACT Relating to disclosure of public information for commercial purposes; amending RCW 42.17.020 and 42.17.260; adding new sections to chapter 42.17 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. The legislature finds that the disclosure of public information for commercial purposes does not facilitate the fundamental purpose of the public disclosure act of assuring open government and that achieving a proper balance between the need for open government and the right of individual citizens to personal privacy requires clarification of the restrictions on disclosure of information for commercial purposes and the adoption of effective sanctions for violations of these restrictions.
Sec. 2. RCW 42.17.020 and 1992 c 139 s 1 are each amended to read as follows:
(1) "Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.
(2) "Ballot proposition" means any "measure" as defined by RCW 29.01.110, or any initiative, recall, or referendum proposition proposed to be submitted to the voters of the state or any municipal corporation, political subdivision, or other voting constituency from and after the time when the proposition has been initially filed with the appropriate election officer of that constituency prior to its circulation for signatures.
(3) "Depository" means a bank designated by a candidate or political committee pursuant to RCW 42.17.050.
(4) "Treasurer" and "deputy treasurer" mean the individuals appointed by a candidate or political committee, pursuant to RCW 42.17.050, to perform the duties specified in that section.
(5) "Candidate" means any individual who seeks election to public office. An individual shall be deemed to seek election when he first:
(a) Receives contributions or makes expenditures or reserves space or facilities with intent to promote his candidacy for office; or
(b) Announces publicly or files for office.
(6) "Commercial advertiser" means any person who sells the service of communicating messages or producing printed material for broadcast or distribution to the general public or segments of the general public whether through the use of newspapers, magazines, television and radio stations, billboard companies, direct mail advertising companies, printing companies, or otherwise.
(7) "Commercial purposes" means any activity by a private person for profit that involves:
(a) Initiating communication with an individual with the intent of either introducing a product or service for sale or soliciting information to be used for the marketing of a product or service;
(b) Assembling information about an individual with the intent of selling or otherwise transferring such information to a person for the purposes described in (a) of this subsection.
(8) "Commission" means the agency established under RCW 42.17.350.
(((8))) (9)
"Compensation" unless the context requires a narrower meaning,
includes payment in any form for real or personal property or services of any
kind: PROVIDED, That for the purpose of compliance with RCW 42.17.241, the
term "compensation" shall not include per diem allowances or other
payments made by a governmental entity to reimburse a public official for
expenses incurred while the official is engaged in the official business of the
governmental entity.
(((9))) (10)
"Continuing political committee" means a political committee that is
an organization of continuing existence not established in anticipation of any
particular election campaign.
(((10))) (11)
"Contribution" includes a loan, gift, deposit, subscription,
forgiveness of indebtedness, donation, advance, pledge, payment, transfer of
funds between political committees, or transfer of anything of value, including
personal and professional services for less than full consideration, but does
not include interest on moneys deposited in a political committee's account,
ordinary home hospitality and the rendering of personal services of the sort
commonly performed by volunteer campaign workers, or incidental expenses
personally incurred by volunteer campaign workers not in excess of fifty
dollars personally paid for by the worker. Volunteer services, for the purposes
of this chapter, means services or labor for which the individual is not
compensated by any person. For the purposes of this chapter, contributions
other than money or its equivalents shall be deemed to have a money value
equivalent to the fair market value of the contribution. Sums paid for tickets
to fund-raising events such as dinners and parties are contributions; however,
the amount of any such contribution may be reduced for the purpose of complying
with the reporting requirements of this chapter, by the actual cost of
consumables furnished in connection with the purchase of the tickets, and only
the excess over the actual cost of the consumables shall be deemed a
contribution.
(((11))) (12)
"Elected official" means any person elected at a general or special
election to any public office, and any person appointed to fill a vacancy in
any such office.
(((12))) (13)
"Election" includes any primary, general, or special election for
public office and any election in which a ballot proposition is submitted to
the voters: PROVIDED, That an election in which the qualifications for voting
include other than those requirements set forth in Article VI, section 1
(Amendment 63) of the Constitution of the state of Washington shall not be
considered an election for purposes of this chapter.
(((13))) (14)
"Election campaign" means any campaign in support of or in opposition
to a candidate for election to public office and any campaign in support of, or
in opposition to, a ballot proposition.
(((14))) (15)
"Expenditure" includes a payment, contribution, subscription,
distribution, loan, advance, deposit, or gift of money or anything of value,
and includes a contract, promise, or agreement, whether or not legally
enforceable, to make an expenditure. The term "expenditure" also
includes a promise to pay, a payment, or a transfer of anything of value in
exchange for goods, services, property, facilities, or anything of value for
the purpose of assisting, benefiting, or honoring any public official or
candidate, or assisting in furthering or opposing any election campaign. For
the purposes of this chapter, agreements to make expenditures, contracts, and
promises to pay may be reported as estimated obligations until actual payment
is made. The term "expenditure" shall not include the partial or
complete repayment by a candidate or political committee of the principal of a
loan, the receipt of which loan has been properly reported.
(((15))) (16)
"Final report" means the report described as a final report in RCW
42.17.080(2).
(((16))) (17)
"Gift," for the purposes of RCW 42.17.170 and 42.17.2415, means a
rendering of anything of value in return for which reasonable consideration is
not given and received and includes a rendering of money, property, services,
discount, loan forgiveness, payment of indebtedness, or reimbursements from or
payments by persons (other than the federal government, or the state of
Washington or any agency or political subdivision thereof) for travel or
anything else of value. The term "reasonable consideration" refers
to the approximate range of consideration that exists in transactions not
involving donative intent. However, the value of the gift of partaking in a
single hosted reception shall be determined by dividing the total amount of the
cost of conducting the reception by the total number of persons partaking in
the reception. "Gift" for the purposes of RCW 42.17.170 and
42.17.2415 does not include:
(a) A gift, other than a gift of partaking in a hosted reception, with a value of fifty dollars or less;
(b) The gift of partaking in a hosted reception if the value of the gift is one hundred dollars or less;
(c) A contribution that
is required to be reported under RCW 42.17.090 ((or 42.17.243));
(d) Informational material that is transferred for the purpose of informing the recipient about matters pertaining to official business of the governmental entity of which the recipient is an official or officer, and that is not intended to confer on that recipient any commercial, proprietary, financial, economic, or monetary advantage, or the avoidance of any commercial, proprietary, financial, economic, or monetary disadvantage;
(e) A gift that is not used and that, within thirty days after receipt, is returned to the donor or delivered to a charitable organization. However, this exclusion from the definition does not apply if the recipient of the gift delivers the gift to a charitable organization and claims the delivery as a charitable contribution for tax purposes;
(f) A gift given under circumstances where it is clear beyond any doubt that the gift was not made as part of any design to gain or maintain influence in the governmental entity of which the recipient is an officer or official or with respect to any legislative matter or matters of that governmental entity; or
(g) A gift given prior to September 29, 1991.
(((17))) (18)
"Immediate family" includes the spouse, dependent children, and other
dependent relatives, if living in the household.
(((18))) (19)
"Legislation" means bills, resolutions, motions, amendments,
nominations, and other matters pending or proposed in either house of the state
legislature, and includes any other matter that may be the subject of action by
either house or any committee of the legislature and all bills and resolutions
that, having passed both houses, are pending approval by the governor.
(((19))) (20)
"Lobby" and "lobbying" each mean attempting to influence
the passage or defeat of any legislation by the legislature of the state of
Washington, or the adoption or rejection of any rule, standard, rate, or other
legislative enactment of any state agency under the state administrative
procedure act, chapter 34.05 RCW. Neither "lobby" nor
"lobbying" includes an association's or other organization's act of
communicating with the members of that association or organization.
(((20))) (21)
"Lobbyist" includes any person who lobbies either in his own or
another's behalf.
(((21))) (22)
"Lobbyist's employer" means the person or persons by whom a lobbyist
is employed and all persons by whom he is compensated for acting as a lobbyist.
(((22))) (23)
"Person" includes an individual, partnership, joint venture, public
or private corporation, association, federal, state, or local governmental
entity or agency however constituted, candidate, committee, political
committee, political party, executive committee thereof, or any other
organization or group of persons, however organized.
(((23))) (24)
"Person in interest" means the person who is the subject of a record
or any representative designated by that person, except that if that person is
under a legal disability, the term "person in interest" means and
includes the parent or duly appointed legal representative.
(((24))) (25)
"Political advertising" includes any advertising displays, newspaper
ads, billboards, signs, brochures, articles, tabloids, flyers, letters, radio
or television presentations, or other means of mass communication, used for the
purpose of appealing, directly or indirectly, for votes or for financial or
other support in any election campaign.
(((25))) (26)
"Political committee" means any person (except a candidate or an
individual dealing with his own funds or property) having the expectation of
receiving contributions or making expenditures in support of, or opposition to,
any candidate or any ballot proposition.
(((26))) (27)
"Public office" means any federal, state, county, city, town, school
district, port district, special district, or other state political subdivision
elective office.
(((27))) (28)
"Public record" includes any writing containing information relating
to the conduct of government or the performance of any governmental or
proprietary function prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics.
(((28))) (29)
"Surplus funds" mean, in the case of a political committee or
candidate, the balance of contributions that remain in the possession or control
of that committee or candidate subsequent to the election for which the
contributions were received, and that are in excess of the amount necessary to
pay remaining debts incurred by the committee or candidate prior to that
election. In the case of a continuing political committee, "surplus
funds" mean those contributions remaining in the possession or control of
the committee that are in excess of the amount necessary to pay all remaining
debts when it makes its final report under RCW 42.17.065.
(((29))) (30)
"Writing" means handwriting, typewriting, printing, photostating,
photographing, and every other means of recording any form of communication or
representation, including, but not limited to, letters, words, pictures,
sounds, or symbols, or combination thereof, and all papers, maps, magnetic or
paper tapes, photographic films and prints, motion picture, film and video
recordings, magnetic or punched cards, discs, drums, diskettes, sound
recordings, and other documents including existing data compilations from which
information may be obtained or translated.
As used in this chapter, the singular shall take the plural and any gender, the other, as the context requires.
Sec. 3. RCW 42.17.260 and 1992 c 139 s 3 are each amended to read as follows:
(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (6) of this section, RCW 42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of specific information or records. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by RCW 42.17.310 and 42.17.315, an agency shall delete identifying details in a manner consistent with RCW 42.17.310 and 42.17.315 when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing.
(2) For informational purposes, each agency shall publish and maintain a current list containing every law, other than those listed in this chapter, that the agency believes exempts or prohibits disclosure of specific information or records of the agency. An agency's failure to list an exemption shall not affect the efficacy of any exemption.
(3) Each local agency shall maintain and make available for public inspection and copying a current index providing identifying information as to the following records issued, adopted, or promulgated after January 1, 1973:
(a) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(b) Those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the agency;
(c) Administrative staff manuals and instructions to staff that affect a member of the public;
(d) Planning policies and goals, and interim and final planning decisions;
(e) Factual staff reports and studies, factual consultant's reports and studies, scientific reports and studies, and any other factual information derived from tests, studies, reports, or surveys, whether conducted by public employees or others; and
(f) Correspondence, and materials referred to therein, by and with the agency relating to any regulatory, supervisory, or enforcement responsibilities of the agency, whereby the agency determines, or opines upon, or is asked to determine or opine upon, the rights of the state, the public, a subdivision of state government, or of any private party.
(4) A local agency need not maintain such an index, if to do so would be unduly burdensome, but it shall in that event:
(a) Issue and publish a formal order specifying the reasons why and the extent to which compliance would unduly burden or interfere with agency operations; and
(b) Make available for public inspection and copying all indexes maintained for agency use.
(5) Each state agency shall, by rule, establish and implement a system of indexing for the identification and location of the following records:
(a) All records issued before July 1, 1990, for which the agency has maintained an index;
(b) Final orders entered after June 30, 1990, that are issued in adjudicative proceedings as defined in RCW 34.05.010(1) and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;
(c) Declaratory orders entered after June 30, 1990, that are issued pursuant to RCW 34.05.240 and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;
(d) Interpretive statements as defined in RCW 34.05.010(8) that were entered after June 30, 1990; and
(e) Policy statements as defined in RCW 34.05.010(14) that were entered after June 30, 1990.
Rules establishing systems of indexing shall include, but not be limited to, requirements for the form and content of the index, its location and availability to the public, and the schedule for revising or updating the index. State agencies that have maintained indexes for records issued before July 1, 1990, shall continue to make such indexes available for public inspection and copying. Information in such indexes may be incorporated into indexes prepared pursuant to this subsection. State agencies may satisfy the requirements of this subsection by making available to the public indexes prepared by other parties but actually used by the agency in its operations. State agencies shall make indexes available for public inspection and copying. State agencies may charge a fee to cover the actual costs of providing individual mailed copies of indexes.
(6) A public record may be relied on, used, or cited as precedent by an agency against a party other than an agency and it may be invoked by the agency for any other purpose only ifC
(a) It has been indexed in an index available to the public; or
(b) Parties affected have timely notice (actual or constructive) of the terms thereof.
(7) This chapter shall
not be construed as giving authority to any agency to give, sell or provide
access to ((lists)) names or addresses of individuals requested
for commercial purposes, and agencies shall not do so unless specifically
authorized or directed by law: PROVIDED, HOWEVER, That lists of applicants for
professional licenses and of professional licensees shall be made available to
those professional associations or educational organizations recognized by
their professional licensing or examination board, upon payment of a reasonable
charge therefor: PROVIDED FURTHER, That such recognition may be refused only
for a good cause pursuant to a hearing under the provisions of chapter 34.05
RCW, the administrative procedure act.
NEW SECTION. Sec. 4. A new section is added to chapter 42.17 RCW to read as follows:
(1) Except as otherwise authorized by law, it is a violation of this chapter for any person to request from any agency the names or addresses of individuals, or to use any names or addresses of individuals obtained by such request for commercial purposes.
(2) A violation of this section is subject to the remedies, procedures, penalties, and sanctions provided for in RCW 42.17.350 through 42.17.450.
(3) Any individual whose name or address has been obtained and used in violation of this section has a cause of action for invasion of privacy and may recover actual and punitive damages and costs.
NEW SECTION. Sec. 5. A new section is added to chapter 42.17 RCW to read as follows:
In order to facilitate the tracing of the source, if public information has been disseminated or used in violation of law, agencies may "salt" the data that is disseminated by randomly inserting fictitious names.
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