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MRSC FOCUS › Inquiry of the Week (12/27/98)
 
Inquiry of the Week (05/25/98)

Inquiry of the Week (5/25/98)

Question:

Is a city or county prohibited from providing a copy of a public record if it is to be used for a commercial purpose?

Answer:

No, except in two instances. One instance is where the public record requested is a "list of individuals." RCW 42.17.260(9) prohibits a public agency from disclosing "lists of individuals requested for commercial purposes." The attorney general's office has interpreted the word "individuals" as used in this statute to refer to "natural persons - as opposed to business entities, committees, or groups" and the word "commercial" to refer to any " 'profit expecting' business activity." AGO 1975 No. 15. The scope of this prohibition is not limited to cases where the requester intends to commercially solicit the individuals on the list. AGO 1998 No. 2.

The other instance is where the record requested is copyrighted. Based on a recent state supreme court case, Lindberg v. Kitsap County, 133 Wn.2d 729 (1997), a public agency should not allow a requestor to copy a copyrighted work unless the copyright holder gives permission or the requestor is seeking a copy for "fair use." Federal copyright law allows "fair use" of a copyrighted work, without the consent of the copyright holder, "for purposes such criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." 17 U.S.C. Section 107.

A person may not make copies of a copyrighted work for commercial purposes, without the copyright holder's permission. It is therefore recommended that a city or county require persons who request a copy of a copyrighted work to sign a statement or affidavit that they will use the record only for a "fair use." Also, it may be advisable in some cases to notify the copyright holder of the request and to delay providing the copy for a certain period of time to allow the holder time to request a protective court order. This is permissible under RCW 42.17.320.

If the record requested is other than a list of individuals or a copyrighted work, the purpose behind the request is not relevant to whether the record may be disclosed under public disclosure law.