WAC 44-14-06002   Summary of exemptions.  (1) General. The act and other statutes contain hundreds of exemptions from disclosure and dozens of court cases interpret them. A full treatment of all exemptions is beyond the scope of the model rules. Instead, these comments to the model rules provide general guidance on exemptions and summarize a few of the most frequently invoked exemptions. However, the scope of exemptions is determined exclusively by statute and case law; the comments to the model rules merely provide guidance on a few of the most common issues.

     An exemption from disclosure will be narrowly construed in favor of disclosure. RCW 42.17.251/42.56.030. An exemption from disclosure must specifically exempt a record or portion of a record from disclosure. RCW 42.17.260(1)/42.56.070(1). An exemption will not be inferred.¹

     An agency cannot define the scope of a statutory exemption through rule making or policy.² An agency agreement or promise not to disclose a record cannot make a disclosable record exempt from disclosure. RCW 42.17.260(1)/42.56.070(1).³ Any agency contract regarding the disclosure of records should recite that the act controls.

     An agency must describe why each withheld record or redacted portion of a record is exempt from disclosure. RCW 42.17.310(4)/42.56.210(4). One way to describe why a record was withheld or redacted is by using a withholding index.

     After invoking an exemption in its response, an agency may revise its original claim of exemption in a response to a motion to show cause.⁴

     Exemptions are "permissive rather than mandatory." Op. Att'y Gen. 1 (1980), at 5. Therefore, an agency has the discretion to provide an exempt record. However, in contrast to a waivable "exemption," an agency cannot provide a record when a statute makes it "confidential" or otherwise prohibits disclosure. For example, the Health Care Information Act generally prohibits the disclosure of medical information without the patient's consent. RCW 70.02.020(1). If a statute classifies information as "confidential" or otherwise prohibits disclosure, an agency has no discretion to release a record or the confidential portion of it.⁵ Some statutes provide civil and criminal penalties for the release of particular "confidential" records. See RCW 82.32.330(5) (release of certain state tax information a misdemeanor).

     (2) "Privacy" exemption. There is no general "privacy" exemption. Op. Att'y Gen. 12 (1988).⁶ However, a few specific exemptions incorporate privacy as one of the elements of the exemption. For example, personal information in agency employee files is exempt to the extent that disclosure would violate the employee's right to "privacy." RCW 42.17.310 (1)(b)/42.56.210 (1)(b). "Privacy" is then one of the elements, in addition to the others in RCW 42.17.310 (1)(b)/42.56.210 (1)(b), that an agency or a third party resisting disclosure must prove.

     "Privacy" is defined in RCW 42.17.255/42.56.050 as the disclosure of information that "(1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." This is a two-part test requiring the party seeking to prevent disclosure to prove both elements.⁷

     Because "privacy" is not a stand-alone exemption, an agency cannot claim RCW 42.17.255/42.56.050 as an exemption.⁸

     (3) Attorney-client privilege. The attorney-client privilege statute, RCW 5.60.060 (2)(a), is an "other statute" exemption from disclosure.⁹ In addition, RCW 42.17.310 (1)(j)/42.56.210 (1)(j) exempts attorney work-product involving a "controversy," which means completed, existing, or reasonably anticipated litigation involving the agency.¹⁰ The exact boundaries of the attorney-client privilege and work-product doctrine is beyond the scope of these comments. However, in general, the attorney-client privilege covers records reflecting communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties and an attorney serving in the capacity of legal advisor for the purpose of rendering or obtaining legal advice, and records prepared by the attorney in furtherance of the rendition of legal advice. The attorney-client privilege does not exempt records merely because they reflect communications in meetings where legal counsel was present or because a record or copy of a record was provided to legal counsel if the other elements of the privilege are not met.¹¹ A guidance document prepared by the attorney general's office on the attorney-client privilege and work-product doctrine is available at www.atg.wa.gov/records/modelrules.

     (4) Deliberative process exemption. RCW 42.17.310 (1)(i)/42.56.210 (1)(i) exempts "Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended" except if the record is cited by the agency.

     In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based.¹² Courts have held that this exemption is "severely limited" by its purpose, which is to protect the free flow of opinions by policy makers.¹³ It applies only to those portions of a record containing recommendations, opinions, and proposed policies; it does not apply to factual data contained in the record.¹⁴ The exemption does not apply to records or portions of records concerning the implementation of policy or the factual basis for the policy.¹⁵ The exemption does not apply merely because a record is called a "draft" or stamped "draft." Recommendations that are actually implemented lose their protection from disclosure after they have been adopted by the agency.¹⁶

     (5) "Overbroad" exemption. There is no "overbroad" exemption. RCW 42.17.270/42.56.080. See WAC 44-14-04002(3).

     (6) Commercial use exemption. The act does not allow an agency to provide access to "lists of individuals requested for commercial purposes." RCW 42.17.260(9)/42.56.070(9). An 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.¹⁷ This authority is limited to a list of individuals, not a list of companies.¹⁸ A requestor who signs a declaration promising not to use a list of individuals for a commercial purpose, but who then violates this declaration, could arguably be charged with the crime of false swearing. RCW 9A.72.040.¹⁹

     (7) Trade secrets. Many agencies hold sensitive proprietary information of businesses they regulate. For example, an agency might require an applicant for a regulatory approval to submit designs for a product it produces. A record is exempt from disclosure if it constitutes a "trade secret" under the Uniform Trade Secrets Act, chapter 19.108 RCW.²⁰ However, the definition of a "trade secret" can be very complex and often the facts showing why the record is or is not a trade secret are only known by the potential holder of the trade secret who submitted the record in question.

     When an agency receives a request for a record that might be a trade secret, often it does not have enough information to determine whether the record arguably qualifies as a "trade secret." An agency is allowed additional time under the act to determine if an exemption might apply. RCW 42.17.320/42.56.520.

     When an agency cannot determine whether a requested record contains a "trade secret," usually it should communicate with the requestor that the agency is providing the potential holder of the trade secret an opportunity to object to the disclosure. The agency should then contact the potential holder of the trade secret in question and state that the record will be released in a certain amount of time unless the holder files a court action seeking an injunction prohibiting the agency from disclosing the record under RCW 42.17.330/42.56.540. Alternatively, the agency can ask the potential holder of the trade secret for an explanation of why it contends the record is a trade secret, and state that if the record is not a trade secret or otherwise exempt from disclosure that the agency intends to release it. The agency should inform the potential holder of a trade secret that its explanation will be shared with the requestor. The explanation can assist the agency in determining whether it will claim the trade secret exemption. If the agency concludes that the record is arguably not exempt, it should provide a notice of intent to disclose unless the potential holder of the trade secret obtains an injunction preventing disclosure under RCW 42.17.330/42.56.540.

     As a general matter, many agencies do not assert the trade secret exemption on behalf of the potential holder of the trade secret but rather allow the potential holder to seek an injunction.

Notes:	1Progressive Animal Welfare Soc'y. v. Univ. of Wash., 125 Wn.2d 243, 262, 884 P.2d 592 (1994) ("PAWS II").
	2Servais v. Port of Bellingham, 127 Wn.2d 820, 834, 904 P.2d 1124 (1995).
	3Spokane Police Guild v. Liquor Control Bd., 112 Wn.2d 30, 40, 769 P.2d 283 (1989); Van Buren v. Miller, 22 Wn. App. 836, 845, 592 P.2d 671, review denied, 92 Wn.2d 1021 (1979).
	4PAWS II, 125 Wn.2d at 253.
	5Op. Att'y Gen. 7 (1986).
	6See RCW 42.17.255/42.56.050 ("privacy" linked to rights of privacy "specified in (the act) as express exemptions").
	7King County v. Sheehan, 114 Wn. App. 325, 344, 57 P.3d 307 (2002).
	8Op. Att'y Gen. 12 (1988), at 3 ("The legislature clearly repudiated the notion that agencies could withhold records based solely on general concerns about privacy.").
	9Hangartner v. City of Seattle, 151 Wn.2d 439, 453, 90 P.3d 26 (2004).
	10Dawson v. Daly, 120 Wn.2d 782, 791, 845 P.2d 995 (1993).
	11This summary comes from the attorney general's proposed definition of the privilege in the first version of House Bill No. 1758 (2005).
	12PAWS II, 125 Wn.2d at 256.
	13Hearst Corp. v. Hoppe, 90 Wn.2d 123, 133, 580 P.2d 246 (1978); PAWS II, 125 Wn.2d at 256.
	14PAWS II, 125 Wn.2d at 256.
	15Cowles Pub. Co. v. City of Spokane, 69 Wn. App. 678, 685, 849 P.2d 1271 (1993).
	16Dawson, 120 Wn.2d at 793.
	17Op. Att'y Gen. 12 (1988). However, a list of individuals applying for professional licensing or examination may be provided to professional associations recognized by the licensing or examination board. RCW 42.17.260(9)/42.56.070(9).
	18Op. Att'y Gen. 2 (1998).
	19RCW 9A.72.040 provides: "(1) A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law. (2) False swearing is a gross misdemeanor." RCW 42.17.270/42.56.080 authorizes an agency to determine if a requestor will use a list of individuals for commercial purpose. See Op. Att'y Gen. 12 (1988), at 10-11 (agency could require requestor to sign affidavit of noncommercial use).
	20PAWS II, 125 Wn.2d at 262.

[Statutory Authority: 2005 c 483 § 4, RCW 42.17.348. 06-04-079, § 44-14-06002, filed 1/31/06, effective 3/3/06.]