Yesterday was a busy day for public records issues, as the Washington Supreme Court issued two detailed decisions relating to the State Public Records Act. In Ameriquest Mortgage Co. v. Office of the Attorney General, the Court held records that include personal financial information protected under the Gramm-Leach-Bliley Act of 1999 (GLBA) must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted. On the other hand, in Resident Action Council v. Seattle Housing Authority, the Court held that records including information protected by certain federal housing regulations must be disclosed under Washington’s PRA, after making appropriate redactions.
The Court in Resident Action Council also provided a new disclosure flow chart and exemption categories for agencies to use in determining whether to disclose information or records pursuant to a PRA request.
Records that Include Information Protected by the Gramm-Leach-Bliley Act are Entirely Exempt from Disclosure Under Washington’s PRA
In Ameriquest Mortgage Co. v. Office of the Attorney General, the Supreme Court unanimously held that records including information protected by the GLBA must be withheld from disclosure under Washington’s PRA, even if the protected information could be redacted.
The Court in Ameriquest reviewed PRA requests for documents held by the Washington State Attorney General’s Office that it received from Ameriquest Mortgage Company as part of an AGO investigation into Ameriquest’s lending practices. Under the GLBA, financial institutions are prohibited from disclosing nonpublic personal information without notice to the consumer. However, an exception applies to those financial institutions complying with an investigation. The GLBA also prohibits agencies from using protected information outside the scope of their investigation and from disclosing such information to a third party. The Court in Ameriquest held that the documents obtained by the AGO that include nonpublic personal information protected by the GLBA are entirely exempt from disclosure under Washington’s PRA because redacting the nonpublic personal information prior to disclosure is outside the scope of the AGO’s investigation and, therefore, outside the use permitted by the GLBA.
(Note that in Resident Action Council, discussed below, the Court recognizes that this result is unusual. “If it is information within a record that is exempted, such information usually can be effectively redacted.”)
The AGO also obtained records from Ameriquest that did not include nonpublic personal information protected by the GLBA. The Court held that these records are subject to disclosure under Washington’s PRA because (1) the documents are not essential to law enforcement and, therefore, do not qualify under the statutory investigative record exemption (RCW 42.56.240); and (2) the documents are not exempt under the State Consumer Protection Act (chapter 19.86 RCW), as Ameriquest provided them voluntarily rather than pursuant to a civil investigative demand.
Records that Include Information Protected by HUD Must be Redacted and Disclosed Under Washington’s PRA
The Supreme Court in Resident Action Council v. Seattle Housing Authority held that records including information protected by HUD must be disclosed under Washington’s PRA, except for the personal information of welfare recipients, which should be redacted. The Court also held that it was within the trial court’s discretion to order the Seattle Housing Authority (SHA) to (1) electronically produce documents that are redacted in a particular format; (2) publish procedures regarding public records requests, a list of applicable exemptions, and policies governing redaction, explanations of withholding, and electronic records; and (3) pay statutory damages ($25 per day) and attorney fees to the Resident Action Council.
Under HUD regulations, SHA is required to keep one copy of each written grievance decision in the tenant’s folder and another copy with all names and identifying references deleted on file for inspection by other tenants who may seek to file a grievance in the future. RAC requested electronic copies of all hearing decisions (both redacted and unredacted) under Washington’s PRA. SHA unsuccessfully argued that HUD regulations preempt disclosure of the unredacted decisions and that an unredacted decision is entirely exempt from disclosure if it contains personal information of welfare recipients.
In the majority opinion written by Justice Gonzalez, the Court stated that HUD regulations merely ensure a limited form of disclosure to a limited class of persons in order to promote fairness within each housing authority’s grievance hearing process. HUD has made clear that it intends for state laws to generally govern disclosure and production of housing authority documents.
The Court also stated in the majority opinion that most of the 141 exemptions under the PRA are “categorical,” exempting without limit a particular type of information or record (e.g., RCW 42.56.230(5) (exempting debit card numbers)). Conditional exemptions, which are less numerous, exempt a particular type of information or record, but only insofar as an identified privacy right or vital governmental interest is demonstrably threatened in a given case. If a type of record is exempt, then meaningful redaction generally is impossible, unless redaction actually transforms the record into one that is outside the scope of the examination. If information within a record is exempt, such information “usually” can be effectively redacted. (Note, the Court reached an “unusual” result in Ameriquest Mortgage Co., discussed above, with respect to information protected by the GLBA that cannot be effectively redacted).
The majority opinion divides the 141 current statutory PRA exemptions into the following new categories (set forth in Appendix A of the decision):
- Categorical-information exemptions;
- Categorical-record exemptions;
- Categorical-hybrid exemptions (exempting both information and records);
- Conditional-information exemptions;
- Conditional-record exemptions;
- Conditional-hybrid exemptions; and
- Ambiguous exemptions that “require serious consideration and construction” prior to any attempt at appropriate grouping.
Applying the new exemption categories, the majority opinion then set forth the following disclosure flow chart, instructing agencies on the steps that must be taken in determining whether disclosure is required under the PRA:
Click here to see diagram.
Notably, the concurring opinion written by Chief Justice Madsen stated that the categories and flow chart in the majority opinion exceed the scope of the question before the Court. The concurring opinion also stated that several of the majority’s PRA classifications are questionable. While four out of the nine justices signed the majority opinion, Justice Owens joined only with the result, which may limit the precedential value of the new chart and categories.