§17.2 Why Reverse Pra Cases Are Filed

• Jurisdiction: Washington

§17.2 WHY REVERSE PRA CASES ARE FILED

Public agencies possess substantial volumes of records concerning private individuals and companies. Sometimes the agency generates such records itself (as in the case of a public employee's personnel file); other records are submitted to the agency by third parties (such as a proposal for a public contract). Almost all such records held by an agency likely fall within the PRA's broad definition of "public record," which includes "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." RCW 42.56.010. See generally Chapter 4 of this deskbook (The Scope of the Public Records Act: What Is an "Agency" and a "Public Record"?) Whether a requested record constitutes a "public record," however, is a threshold determination that should be resolved by the court before issues related to exemptions are addressed. See, e.g., Dragonslayer, Inc. v. State Gambling Comm'n, 139 Wn.App. 433, 441, 161 P.3d 428 (2007) (burden to prove a record is exempt "only applies when a party seeks to disclose a public record[,]" which is a "threshold inquiry").

The PRA provides public access to all public records unless they are specifically exempt under the PRA or some "other statute" that prohibits disclosure of the record. See RCW 42.56.070(1). Thus, a requestor can obtain access to documents that third parties have provided to a state or local agency unless the documents fall within the scope of a PRA or "other statute" exemption.

The PRA allows certain third parties to seek an injunction barring disclosure of identified public records. Specifically, the statute permits "a person who is named in the record or to whom the record specifically pertains" to move to enjoin the agency from releasing the record. RCW 42.56.540. Although RCW 42.56.540 does not limit the types of records that may be subject to a reverse PRA action, the situations discussed below are the most common.

(1) Privacy

Many reverse PRA cases involve an individual seeking to prevent the disclosure of information implicating a "privacy" interest. See RCW 42.56.050 (defining "privacy" as used in certain PRA exemptions). As detailed in Chapter 8 (Privacy) of this deskbook, the PRA does not contain a free-floating exemption for privacy, but it does recognize several privacy-based exemptions as well as a number of exemptions for certain personal information. These exemptions arise frequently in reverse PRA litigation.

For example, the PRA exempts from disclosure "[p]ersonal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy." RCW 42.56.230(3); see Bellevue John Does 1-11 v. Bellevue Sch. Dist. #405, 164 Wn.2d 199, 210, 212, 189 P.3d 139 (2008) (identities of public school teachers who are the subject of unsubstantiated sexual misconduct allegations are exempt from disclosure under RCW 42.56.230(3) on privacy grounds). SeeChapter 10 (Personnel Records of Public Employees) of this deskbook. The Washington Supreme Court has held that "[t]he privacy protection afforded by the PRA is narrow, and it extends an individual the right to privacy 'only in matter[s] concerning [their] private life.'" Washington Pub. Employees Ass'n v. Washington State Ctr. for Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 497, 450 P.3d 601 (2019) (citations omitted). A court "looks to the Restatement to determine what kind of information falls within the scope of private matters under the PRA." Id

The PRA also protects personal information in the files of public school students and patients or clients of public health and welfare programs, see RCW 42.56.230(1); personal information of participants in a public or nonprofit program related to children or students, such as youth development programs or child care services, see RCW 42.56.230(2); and certain taxpayer information, see RCW 42.56.230(4); Harley H. Hoppe & Assocs. v. King County, 162 Wn.App. 40,255 P.3d 819, review denied, 172 Wn.2d 1019 (2011) (exempting disclosure of private tax information that would result in an unfair competitive...