Chapter §8.3 The Definition of Privacy-the Evolution of the Doctrine

• Jurisdiction: Washington

§8.3 THE DEFINITION OF PRIVACY—THE EVOLUTION OF THE DOCTRINE

When the PRA was first adopted in 1972 it did not contain a definition of "privacy," although the term was used throughout the Act. It thus fell to the courts to define the term as litigation arose around the new law. Six years after the law's passage, the Washington Supreme Court first waded into the discussion in Hearst Corp. v. Hoppe, 90 Wn.2d 123, 580 P.2d 246 (1978), a case in which a Seattle newspaper sought records from the King County Assessor. At issue was whether disclosure of records of the assessor would violate the taxpayers' right to privacy recognized in RCW 42.56.230(4), an exemption that allowed withholding of information of taxpayers if disclosure would violate the taxpayers' "right to privacy." Id. at 125-26. The court presumed that because the Act did not define the "right to privacy," the legislature had intended the term to mean what it meant at common law. The court looked to the law of torts and specifically the Restatement (Second) of Torts §652D, at 383 (1997)—the tort for invasion of privacy by publication of private facts—for its test. Id. at 135. Section 652D stated that an invasion of privacy by publication of private facts occurred when the matter publicized was both "highly offensive to a reasonable person" and "not of legitimate concern to the public." The court held that the requested records—work sheets and notes of the property tax assessor and other records regarding assessed property values—were not exempt because the information was not of the kind that would be highly offensive to a reasonable person. Id. at 138. It did not reach the "legitimate concern" prong of the test.

The Hearst v. Hoppe test remained the law until 1986, when the Washington Supreme Court decided In re Request of Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986), two consolidated cases dealing with public access to customer names and addresses and usage information from a public utility district (PUD). In the first case, a candidate for the board of commissioners of the PUD sought access to a list of the PUD's customers so he could send the customers a campaign advertisement. The PUD sought an injunction against itself to prevent it from having to give the candidate the mailing list. In the second case, several government officials who had previously been allowed to obtain utility usage information from the PUD were suddenly denied access by the PUD. The government officials were in law enforcement and used the information to identify customers with unusually high power usage, on the theory that these individuals might be growing marijuana or manufacturing other illegal drugs. The government officials filed suit against the utility district. The cases were consolidated and accepted by the Washington Supreme Court for direct review.

Although the court held that the records in both cases were not exempt and had to be disclosed to the requestors, in doing so the court recognized a "general exemption for personal privacy" that could defeat disclosure if the private interest outweighed the public interest in the information. Rosier, 105 Wn.2d at 609. A vigorous dissent argued that this new general privacy exemption eviscerated the Act. Id. at 618.

The legislature was quick to respond. A year after the Supreme Court's decision in Rosier the legislature amended the PRA by enacting RCW 42.17.255, now found at RCW 42.56.050 —a statute specifically defining what the legislature meant when it used the word "privacy." The intent provision of the new section is unequivocal:

The legislature intends to restore the law relating to the release of public records largely to that which existed prior to the Washington Supreme Court in "In re Rosier," 105 Wn.2d 606 (1986). The intent of this legislation is to make clear that: (1) Absent statutory provisions to the contrary, agencies possessing records should in responding to requests for disclosure not make any distinctions in releasing or not releasing records based upon the identity of the person or agency which requested the records, and (2) agencies having public records should rely only upon statutory exemptions or prohibition for refusal to provide public records. Further, to avoid unnecessary confusion, "privacy" as used in [RCW 42.17.255, now RCW 42.56.050] is intended to have the same meaning as the definition given that word by the Supreme Court in "Hearst v. Hoppe," 90 Wn.2d 123, 135 (1978).

Laws of 1987, ch. 403, §1.

RCW 42.56.050 adopted the same test for privacy as the court had set forth in Hearst Corp., the one drawn from the Restatement (Second) of Torts §652D and the tort of publication of private facts:

A person's "right to privacy," "right of privacy," "privacy," or "personal privacy," as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of this chapter dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

RCW 42.56.050; see Bellevue John Does 1-11 v. Bellevue Sch. Dist. #405, 164 Wn.2d 199, 212-13, 189 P.3d 139 (2008).

Thus, since 1987 it has been clear that privacy in the PRA means that the information disclosed is both highly offensive to a reasonable person and of no legitimate public concern. A party seeking to withhold information based on privacy must meet both prongs of this test. See Bainbridge Island Police Guild v. City of Puyallup, 172 Wn.2d 398, 417, 259 P.3d 190 (2011).

It is not enough that disclosure of such personal information "may cause inconvenience or embarrassment to public officials or others." RCW 42.56.550(3). Further, under RCW 42.56.050, "the use of a test that balances the individual's privacy interest against the interest of the public in disclosure is not permitted." Dawson v. Daly, 120 Wn.2d 782, 795, 845 P.2d 995 (1993) (citing Brouillet v. Cowles Publ'g Co., 114 Wn.2d 788, 798, 791 P.2d 526 (1990)); Koenig v. City of Des Moines, 158 Wn.2d 173, 182, 142 P.3d 162, 167 (2006).

Note: FOIA's Privacy Test. The federal public records law, the Freedom of Information Act (FOIA), 5 U.S.C. § 552 has a different test for privacy. Unlike the PRA, the FOIA test explicitly allows for balancing of private interests against public interests. See, e.g., McCutckeon v. U.S. Dep't of Health & Human Servs., 30 F.3d 183 (D.C. Cir. 1994). As noted in the text above, the PRA prohibits such balancing. When FOIA and the PRA differ, a Washington court will not apply the FOIA standard See Chapter 20 (Introduction to the Federal Freedom of Information Act (FOIA)) of this deskbook.

The PRA does not create additional enforceable privacy rights or a cause of action against agencies or private parties for improper dissemination of private information. See RCW 42.56.060 (immunity for employees and agencies from any liability based upon the release of a public record if the employee or agency acted in good faith); Corey v. Pierce County, 154 Wn.App. 752, 765-67, 225 P.3d 367 (2010) (rejecting tort claim for negligent disclosure of records of unsubstantiated misconduct); Cawley-Herrmann v. Meridith Corp., 654 F.Supp.2d 1264, 1266-67 (W.D. Wash. 2009) (rejecting privacy tort claim based on news media's reporting of truthful information about teacher that allegedly would be exempt from disclosure under PRA).

The test set forth in RCW 42.56.050 is one of the most litigated provisions in the PRA. Below is a discussion of several of the decisions in which the courts have tried to interpret and apply the test.

(1) Highly offensive to a reasonable person

To withhold information based on "privacy," a party must establish that disclosure is "highly offensive to a reasonable person." As noted above, RCW 42.56.050 was taken from the Restatement (Second) of Torts §652D (1977) and the tort of invasion of privacy by publication of private facts, which provides an extensive body of law and commentary to draw upon in interpreting this first part of the test but in a different context involving tort liability. The Washington Supreme Court first recognized the common-law tort of invasion of privacy in Reid v. Pierce County, 136 Wn.2d 195, 961 P.2d 333 (1998). That case, however, did not involve a PRA request.

There are few hard and fast rules establishing what is "highly offensive," but precedent supports the following points.

(a) Promises of confidentiality do not create an enforceable privacy interest under the PRA

Arguments that disclosure of public records would be "highly offensive" based on an agency or public employee's promise of confidentiality have not been successful. Washington courts have repeatedly confirmed that such promises are irrelevant to the PRA analysis. Agencies cannot contract for or make enforceable promises of secrecy. "[P]romises cannot override the requirements of the disclosure law." Hearst Corp., 90 Wn.2d at 137 ; Spokane Police Guild v. State Liquor Control Bd., 112 Wn.2d 30, 40, 769 P.2d 283 (1989); see also Brouillet, 114 Wn.2d at 794 (rejecting argument that state regulation mandating confidentiality of records merited deference in court's determination of exemption from disclosure).

(b) "Privacy" requires a reasonable expectation of privacy

The concept of privacy—and a finding that disclosure would be highly offensive to reasonable people—requires that a person have an expectation of privacy in the information in the first place, and that...