February 2021 Knowing the Waters; a column by WPPA Counsel Frank Chmelik

Requests for public records have been on the rise, and any request you receive that asks for a list of of individuals, companies or employees needs to be treated with extra caution.  The Public Records Act, at RCW 42.56.070(8), prohibits governments from providing “access to lists of individuals requested for commercial purposes”.  While fairly straightforward, like many things in law, the lack of a definition in the statute of what constitutes a “commercial purpose” creates confusion. On one hand, we all know that the Public Records Act favors disclosure and provides stiff per diem penalties and attorney fees payment from governments that do not provide disclosure.  On the other hand, RCW 42.56.070(8) prohibits disclosure of “lists of individuals requested for commercial purposes”.       

In 2016, Division II of the Washington Court of Appeals took up an appeal by the SEIU Healthcare Local 775, a union representing health care workers, seeking to block an organization called the Freedom Foundation from obtaining a list of individual home care providers from the Washington Department of Social and Health Services and represented by SEIU.  The Freedom Foundation requested lists of these state employees to advise them on their “constitutional rights” related to union representation. There were all sorts of arguments about what and what is not a “commercial purpose”.  The SEIU argued that the Freedom Foundation would use the list for a commercial purpose because the Foundation would receive money from its donors because of the work it was doing.  The Court finally concluded that a “commercial purpose” was any form of business enterprise intended to directly generate revenue or financial benefit. The Court declined to include indirect (like revenue received from donors) revenue or financial benefit.  Stated another way, the list of individuals cannot be provided if the direct purpose of the use of the list is to make a profit or derive revenue.

Not stopping there, the Court noted that the limitation in RCW 42.56.070(8) was, like all exemptions in the Public Records Act, to be narrowly construed and that governments have an obligation to “investigate” if the government has a reasonable belief that the list will be used for commercial purposes.  One can see the tension between the overarching duty to disclose and the prohibition against disclosing lists for commercial purposes and the need to investigate- withhold the list and face a penalty of up to $100 per day plus attorney fees or fail to properly investigate or release the list and face a lawsuit for violation of RCW 42.56.070(8).

Here are some ideas on “best practices” for Public Record Act requests when the requestor asks for access to a list of individuals.

1.   For requests for lists of individuals, modify the standard initial response letter to include a paragraph about the limitation prohibiting disclosure of lists of individuals for a commercial purpose.  Include in the paragraph the definition of commercial purpose, “business activity by any form of business enterprise intended to generate revenue or profit”.  Remember that if the request contains other items those must be timely addressed. Separate and apart from the list issue.

2.         Include a questionnaire with the letter asking the requestor to state under penalty of perjury that the requestor will not use the list or allow the list to be used for commercial purposes. In addition, the requestor should be asked to state the purpose for which the list is sought.  One may need to go even further.  The Court indicated it was a case-by-case analysis.

3.         Notify third parties impacted by the list. In the case discussed above, DSHS notified the SEIU union leadership which then filed the lawsuit.  Let the third party bring the lawsuit.

4.         Lean hard towards releasing the list of individuals.  Remember the exemptions and this exclusion are narrowly construed in favor of disclosing.

5.         Always talk with legal counsel before denying any request, even a request for a list of individuals.  Of course, failure to disclose results in a daily penalty up to $100 per day and attorney fees.

Like most legal matters a bit of preparation goes a long way.  Ask your port counsel to help prepare the form letter and the questionnaire.  Or we can provide the form letter and questionnaire we use; however, you still need to run it by your port’s lawyer. 

As always, please contact your port counsel with any questions regarding this topic.   And, if you have a particular question for a Knowing the Waters please email me at fchmelik@chmelik.com.