HOUSE BILL REPORT

HB 4

BYRepresentatives Fisher, Madsen, Barnes and Wang; by request of Attorney General

Revising provisions governing the release of public records.

House Committe on Constitution, Elections & Ethics

Majority Report:     The substitute bill be substituted therefor and the substitute bill do pass.  (7)

     Signed by Representatives Fisher, Chair; Pruitt, Vice Chair; Amondson, Barnes, Fisch, Leonard and Sanders.

House Staff:Kenneth Hirst (786-7105)

AS REPORTED BY COMMITTEE ON CONSTITUTION, ELECTIONS & ETHICS

JANUARY 27, 1987

BACKGROUND:

This state's public records law governing access to the records of public agencies is contained in the public disclosure statutes.  Included among those statutes are provisions exempting certain information and records from public inspection and copying.

In a 1978 decision, Hearst v. Hoppe (90 Wn.2d 123), the state's Supreme Court observed that the scheme established by the disclosure statutes establishes a positive duty for a public agency to disclose public records unless they fall within the specific exemptions.  One of exemptions the Court was asked to consider in that case contained a reference to a taxpayer's right to privacy. A definition of the phrase "right to privacy" is not specified in the public disclosure statutes.  To fill the definitional void of the disclosure statutes, the Court adopted the standard and analysis of the Restatement (Second) of Torts regarding tort liability for invasions of privacy by public disclosure of private facts.

In a 1986 decision, In re Rosier (105 Wn.2d 606), the state's Supreme Court recognized under the public disclosure statutes a privacy interest in any information matched to a particular individual's name and revealing a unique fact about the individual. The Court promulgated a new rule for determining whether such data must be exempted from disclosure.  The rule requires that the personal privacy interest in that information be weighed against the public interest in disclosure.

In the Rosier decision, the Court also addressed the ability of law enforcement officials to examine records maintained by a public agency where the information sought is matched to a particular person's name, such as records of an individual's electrical usage.  The Court stated that governmental authorities should articulate a specific suspicion of particular illegal conduct when seeking the disclosure of particular information matched to a specific individual.

SUMMARY:

SUBSTITUTE BILL:  The Legislature expresses its intention to restore the law relating to the release of public records to that which existed prior to the state's Supreme Court decision in In re Rosier, 105 Wn.2d 606 (1986).

Each agency shall make available for public inspection and copying all public records unless the record falls within the specific exemptions of statutes which exempt or prohibit disclosure of specific information or records.  The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute exempting or prohibiting disclosure in whole or in part of specific information or records.

Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request except as required by statute.

A right of privacy or personal privacy is invaded or violated for the purposes of the public disclosure statutes only if disclosure of information about the person:  would be highly offensive to a reasonable person, and is not of legitimate concern to the public.  The public disclosure statutes do not create any right of privacy beyond those rights specified as express exemptions from the public's right of access to public records.

A provision of state law is altered which directs an agency to delete identifying details in a record it releases, to the extent required to prevent an unreasonable invasion of personal privacy.  The provision is applied only to personal privacy interests protected by two sections of the public disclosure statutes which provide exemptions from the duty to release public records.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The original bill contained a provision which could be interpreted as taking away the right of a person to sue an agency in order to prevent the agency from disclosing information in violation of the person's right to privacy.  The substitute replaces that provision with language providing that the bill does not create any right of privacy beyond those rights specified as express exemptions from the public's right of access to public records.

Fiscal Note:    Requested January 23, 1987.

House Committee ‑ Testified For:     Chip Holcomb, Office of the Attorney General; Paul Conrad, Allied Daily Newspapers; Mark Allen, Association of Broadcasters; Graham Johnson, Public Disclosure Commission.

House Committee - Testified Against: None Presented.

House Committee - Testimony For:     (1) The release of public records should be based upon whether or not there is an express exemption prohibiting release; it should not be based upon a complex decision-making process for weighing various interests.  (2) The bill clarifies that exemptions from disclosure can be found in other statutes outside the public disclosure statutes.  (3) The Rosier decision obscured the guidance given agencies for releasing records; public agencies need bright lines of guidance.

House Committee - Testimony Against: (1) The names of applicants for public employment should be exempted from disclosure to ensure that the broadest range of qualified persons will feel free to apply for top level positions.  (2) The release of the telephone numbers and home addresses of public employees to the public was not within the purpose of Initiative 276 which established the public disclosure laws; that information should be exempted from disclosure.  (3) The bill should be amended to ensure that a superior court can still weigh the public's interest in protecting records from release.