Exemptions - Black and White? or Shades of Gray?

Exemptions. They are the vexing challenge of Public Records Work. While some (such as social security numbers) are very obvious, most applications contains shades of gray.

There are many comprehensive lists of exemptions floating around. These are long lists of RCW or other legal code citations. If you peruse them you will find loooong lists of seemingly specific information that should be protected. RCW 42.56.210 - 42.56.550 is a great example. The catch is these are often not as simple in their applications as they appear. 

One of the most commonly cited exemption that fits this description is RCW 42.56.240(1) - also known as the 'active investigation' exemption. It reads:

The following investigative, law enforcement, and crime victim information is exempt from public inspection and copying under this chapter:
(1) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy;

The key words are "essential to effective law enforcement". A common description of what this is applied to is records contained in an active, on-going criminal investigation – this is a “categorical” exemption, meaning the records are exempt as a whole in their entirety. Some agencies have applied this exemption sweepingly, others very strategically. 

White vs. City of Lakewood (2016) provides a note of caution. The Court of Appeals, Division 2 wrote: An agency citing a categorical exemption from disclosure based on effective law enforcement exemption “does so at its own risk” because the exemption covers investigations that are “open and active.” In other words, if you are going to claim this, it had better actually be open and active. 

This is one of the easiest, most illustrative examples of the complexities in applying public records exemptions. In every class I have ever attended or taught, a request is made for black and white advice of when specific exemptions apply. And, inevitably, they are frustrated when the presenter answers their questions with vague answers. 

The reason for this is simple. Put four attorneys in a room, provide them with the question, and chances are you will get 2-4 different answers. At the end of the day, YOUR agency attorney will be the only defending the agency in court. And 95% of the time, the answer you seek is not black and white. 

Trainings will provide you with framework, guidance, and references. But they do not replace your own legal counsel. It is crucial that the agency attorney and the Public Records Officer have a close working relationship. Otherwise it could be real awkward to stand in front of a judge - or the media.