April 2014 Bar Bulletin
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April 2014 Bar Bulletin

Are Public Disclosure Laws Fair to Government Employees?

By Amy J. Stephson


Most people consider it a given that our public disclosure laws are a good thing: After all, none of us wants our governments acting in secret. And in most instances they are a good thing.

However, as a lawyer who has conducted numerous discrimination, harassment and retaliation workplace investigations for employers covered by the public disclosure laws, I would argue that sometimes they can go too far.

The Law

Under the Public Records Act (PRA), RCW ch. 42.56, state and local agencies must make available for public inspection all public records, including electronic metadata, unless the record falls within a specific exemption. The PRA is to be liberally construed to promote full access to public records and its exemptions are narrowly construed.1

The government agency to which a request is directed bears the burden of establishing that an exemption applies.2 Even if an exemption does apply, an agency must parse individual records and withhold only those portions that come under a specific exemption; portions that are not exempt must be disclosed.

The PRA's main exemption sections are RCW 42.56.210-.440. Several exemptions apply to workplace investigation documents such as investigative reports and witness interview notes. RCW 42.56.250(5), for example, protects from disclosure investigative records of a "current" investigation while it is ongoing. Once the investigation is over, the records are no longer exempt under this section.

Another exemption that may apply to workplace investigations, though typically it doesn't, is RCW 42.56.290. Among other things, this exemption makes the attorney-client privilege and work product doctrines available to public employers. This section, however, does not automatically exempt records, e.g., government-created documents such as emails or memos, from disclosure simply because the attorney-client or work product privileges may apply to an investigation as a whole.3

The third main exemption that applies to investigations is RCW 42.56.230(3). This subsection exempts, "Personal 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." For a disclosure to violate a person's "right to privacy" under this exemption (and elsewhere in the PRA), it must be both "highly offensive to a reasonable person" and "not of legitimate concern to the public."4

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