Exemptions and Prohibitions for Local Government Records

Overview

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. 

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.

Attorney Work Product and Attorney-Client Privileged Communications

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)).

Drafts

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?.

Employee Hiring

The following information is exempt in the employee hiring context (RCW 42.56.250):

• Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.
• Applications for public employment, including applicant names, resumes, and other related materials submitted. (However, this exemption does not apply to applications for vacancies in elective office.)
• Background checks and pre-employment polygraphs are included within the meaning of “other materials submitted with respect to an applicant.” See Sheats v. East Wenatchee (2018).

Employee/Official Personal Information

• Private personal information about employees, appointees, or elected officials stored in public agency files is exempt (RCW 42.56.230(3)). A person’s right to privacy is invaded or violated if a disclosure would: (1) be highly offensive to a reasonable person; and (2) is not of legitimate concern to the public (RCW 42.56.050). This includes certain performance reviews. For more, see this FAQ: Are performance reviews exempt?
• The following employee and volunteer information held by the agency in personnel records, public employment-related records, volunteer records, or agency mailing lists is exempt: residential addresses, residential telephone numbers, personal wireless telephone numbers, personal email addresses, social security numbers, driver’s license numbers, identicard numbers, payroll deductions including the amount and identification of the deduction, and emergency contact information (RCW 42.56.250(1)(d)).
• Photographs and month and year of birth in the personnel files (RCW 42.56.250(1)(h)). However, the news media as defined in RCW 5.68.010(5) can gain access to this information.
• Any employee’s name and other personally identifying information if they or a dependent are survivors of domestic violence, sexual assault, sexual abuse, stalking, or harassment, or if they participate in the address confidential program under chapter 40.24 RCW (RCW 42.56.250(1)(i)).

Financial Account Numbers

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.

Investigative, Law Enforcement and Crime Victim Records

Some of the more commonly used exemptions under RCW 42.56.240 for investigative and law enforcement records are:

• Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies if nondisclosure is essential to effective law enforcement or for the protection of any person’s right to privacy. A person’s right to privacy is invaded or violated if disclosure would: (1) be highly offensive to a reasonable person; and (2) is not of legitimate concern to the public (RCW 42.56.050).
• The identities of crime witnesses and victims or people who file complaints with investigative, law enforcement, or penology agencies if disclosure would endanger any person’s life, physical safety, or property, or if nondisclosure is requested at the time the complaint is filed.
• The identities of child victims of sexual assault.
• Body camera recordings to the extent nondisclosure is essential for the protection of any person’s right to privacy (a list of specific circumstances where public disclosure of the recording is presumed to be "highly offensive to a reasonable person" is set forth in the statute). To withhold or redact the recording, the agency must also determine that the image is "not of legitimate concern to the public."

For further information, see our Law Enforcement Records Tool Kit.

Real Estate Transactions

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):

• Real estate appraisals made for or by an agency for purposes of acquiring or selling property (except no appraisal may be withheld for more than three years after creation).
• Documents prepared for the purpose of considering the selection of a site or the acquisition of real estate by purchase or lease, or for the purpose of considering the minimum price of real estate that will be offered for sale or lease, when public knowledge would cause a likelihood of increased prices.

"Commercial Purposes" Prohibitions

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.

Recommended Resources

For more comprehensive guidance on exemptions and prohibitions, see the following resources:

• MRSC:
  • Public Records Act – Publication offering a detailed outline of PRA, common prohibitions and exemptions, processes and procedures, and more
  • Knowing the Territory – Publication for elected officials which contains a chapter on the PRA and its exemptions. See section titled Records that May Be Withheld.
  • Public Records Act FAQs – See section on Exemptions and Prohibitions
  • MRSC Insight – Blog posts about the Public Records Act, often reviewing new exemptions adopted by the Washington Legislature
• Attorney General's Office: Open Government Resource Manual Chapter 2: Public Records Act - Exemptions