SENATE BILL REPORT

ESHB 4

BYHouse Committee on Constitution, Elections & Ethics (originally sponsored by Representatives Fisher, Madsen, Barnes and Wang; by request of Attorney General)

Revising provisions governing the release of public records.

House Committe on Constitution, Elections & Ethics

Senate Committee on Judiciary

Senate Hearing Date(s):March 24, 1987; March 26, 1987

Majority Report:  Do pass as amended.

      Signed by Senators Talmadge, Chairman; Bottiger, McCaslin, Nelson, Newhouse.

Senate Staff:Jon Carlson (786-7459)

                  March 26, 1987

AS REPORTED BY COMMITTEE ON JUDICIARY, MARCH 26, 1987

BACKGROUND:

This state's public records law governing access to the records of public agencies is contained in the public disclosure statutes.  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 outlined by the disclosure statutes establishes that a public agency should release 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 which reveals 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 addressed the ability of law enforcement officials to examine records maintained by a public utility district 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 from an agency of particular information matched to a specific individual.

SUMMARY:

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 are not to distinguish among persons requesting records, and such persons are not 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.

A law enforcement authority may not request inspection or copying of the records of any person which belong to a public utility district unless the authority provides the district with a written statement that it suspects that the person has committed a crime and that the authority has a reasonable belief that the records could help determine whether the suspicion is true.  Information obtained in violation of this rule is inadmissable in any criminal proceeding.

SUMMARY OF PROPOSED SENATE AMENDMENT:

The provisions relating to privacy are removed from the definitions section of the Public Disclosure Act and are now incorporated in a new section.

The restrictions that apply to law enforcement when requesting inspection of records that belong to a public utility district also extend to similar requests made to a municipally owned electrical utility.

Fiscal Note:      requested

Senate Committee - Testified: Fred Saeger, Washington Association of County Officials; Chip Holcomb, Assistant Attorney General; Chuck Sauvage, Common Cause