A Washington Court of Appeals recently addressed this question in a case involving a request from the Freedom Foundation to a state agency for lists of names of home healthcare workers and their contact information. The union representing the workers opposed the disclosure. SEIU Healthcare v. DSHS and Freedom Foundation (No. 446797-6-II, April 12, 2016). The State’s Public Records Act (PRA) “shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law.” RCW 42.56.070(9). The union argued this provision prohibited disclosure, and was not just an exemption from disclosure. The Court rejected the argument, finding “the distinction between an exemption and a prohibition largely is immaterial. [Another section of the PRA] does not distinguish between the two, referring to any other statute that ‘exempts or prohibits’ disclosure. . . . We conclude that RCW 42.56.070(9) must be construed in favor of disclosure regardless of whether [RCW 42.56.070(9)] states an exemption or prohibition.”

The Court then determined if the request was for “commercial purposes”. The Freedom Foundation asserted that the request was for communication to workers about their constitutional rights, and not to solicit contributions. The Court applied the following definition in ruling in favor of the Foundation’s request: “commercial purposes” in RCW 42.56.070(9) includes a business activity by any form of business enterprise intended to generate revenue or financial benefit. The Court found that the Foundation was not seeking to generate revenue or financial benefit.

In its decision, the Court added to an agency’s already-difficult burden in responding to PRA requests. Because RCW 42.56.070(9) expressly states that a government agency “shall not” provide access to lists of individuals requested for commercial purposes, the Court determined there is “some burden on the agency to avoid disclosing lists of individuals to a party intending to use the list for commercial purposes.” While the PRA gives no specific guidance, the Court held that an “agency must investigate when it has some indication that the list might be used for commercial purposes. Whether an agency must investigate will depend on a case-by-case determination based on the identity of the requester, the nature of the records requested, and any other information available to the agency.” And, an agency “must at least require a party requesting a list of individuals to state the purpose of the request.” The Court gives no further guidance.

The Washington Attorney General model rules advise that “[a]n agency may require a requestor to sign a declaration that he or she will not put a list of individuals in the record to use for a commercial purpose.” WAC 44-14-06002(6) (citing AGO 1988 No. 12 at 10-11 (agency could require requestor to sign affidavit of noncommercial use)). The Court concluded this is no longer sufficient. The agency must additionally require the declarant to state the purpose of the request if RCW 42.56.070(9) is implicated:

DSHS suggests that if an agency has an obligation to investigate, an affirmation from the requesting party that the intended use of the list is not for commercial purposes is sufficient. The problem with such an affirmation is that it allows the requesting party to control whether a list of individuals will be released without any independent inquiry by the agency. Therefore, merely requiring an affirmation from the requesting party is not sufficient to satisfy an agency’s obligation to investigate under RCW 42.56.070(9).

In light of this ruling, if an agency fails to obtain a declaration from the requestor that both disclaims use for commercial purposes and states the requestor’s intended purposes, then releasing the record risks waiving immunity under RCW 42.56.060 if the agency gets it wrong. And, a wrongful withholding (whether or not founded on a declaration) could still subject the agency to penalties and fees. A declaratory judgment action might be the agency’s only recourse. Otherwise, there may be too much risk of agency exposure under the PRA for a wrong decision and for withholding of requested records.