Listings Of Taxable Property As Lists Of Names Of Individuals Requested For A Commercial Purpose

REAL ESTATE—PUBLIC RECORDS—PROPERTY—NAMES—Listings Of Taxable Property As Lists Of Names Of Individuals Requested For A Commercial Purpose

A request for access to an alphabetical listing of personal property owners constitutes a request for a list of individuals which must be denied under RCW 42.56.070(8) if the request is for a commercial purpose. In addition, RCW 42.56.080 requires a county assessor in appropriate circumstances to investigate whether a list of personal property owners is requested for a commercial purpose, which may include investigating whether a request for a list of real property is in fact a request for a list of individuals for a commercial purpose.

August 1, 2019

Dear Prosecutor Sant:

            By letter previously acknowledged, you requested our opinion regarding the “commercial purposes prohibition,” RCW 42.56.070(8),[1] in the Public Records Act (PRA). That provision provides that agencies “shall not” “give, sell or provide access to lists of individuals requested for commercial purposes,” unless specifically authorized or directed by law. Your request focuses on how it applies to electronically-stored property assessment and tax data. We have paraphrased your questions as follows:

1.         Do public records requests made for commercial purposes implicate the commercial purposes prohibition if they request electronic records that can be internally queried or sorted to display lists of individuals?

2.         If so, is it proper to redact names of individuals from records provided in response to such requests?

BRIEF ANSWERS

1.         Yes. Unless otherwise authorized or directed by law, the commercial purposes prohibition, RCW 42.56.070(8), forbids agencies from providing access to lists of individuals requested

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for commercial purposes. Providing access to electronic records that can, by means of internal queries or sorting, display lists of individuals would be tantamount to providing access to lists of individuals which, if requested for commercial purposes, is prohibited by RCW 42.56.070(8).

2.         Yes. If requested records contain lists of individuals, agencies should redact the individuals’ names, if possible. The responding agencies should first determine whether they can provide the records requested without providing access to lists of individuals, either through redaction, obtaining the requestor’s agreement to modify the request, or otherwise. If the agencies do not have the current capability to produce the requested records without access to lists of individuals, the agencies should consider whether they can provide customized electronic data compilations or access. They may charge for the costs associated with those services after giving the requestors notice and an opportunity to modify their requests.

BACKGROUND

            Counties are required by law to annually “list[] and assess[]” all personal[2] and real property that is subject to state property taxation. RCW 84.40.020. This generally involves collecting certain information about the property, determining the value of the property, and making that information publicly available. RCW 84.40.020, .160. While personal property is required to be listed with reference to its value and ownership, real property is required to be listed with reference to its value and legal description, although it must also identify the owners. RCW 84.40.020, .040, .160.

            In 1980, our office issued an opinion that real property assessment rolls were not “lists of individuals” for purposes of the commercial purposes prohibition because they primarily listed properties. AGO 1980 No. 1, at 15. The fact that the lists of properties also identified the properties’ owners did not transform them into lists of persons. AGO 1980 No. 1, at 15. We so concluded based on an example assessment roll provided to us at that time, which listed parcels of property in numerical order in the first column, and the owners of the parcels in the second column. In the same opinion, we determined that personal property listings, because they were organized alphabetically by property owner, were lists of persons implicating the commercial purposes prohibition. AGO 1980 No. 1, at 15.

            Now, however, counties more commonly maintain relevant property tax and assessment information, including property owner names, in electronic databases that can use various queries to generate reports.[3] The reports, even if not originally presented as lists of persons, can display

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lists of persons by sorting the data in the document by various fields. For example, a county may generate an Excel spreadsheet report from its database that is organized (or sorted) by parcel number, which also contains property owner names in separate fields. Although not originally organized by name, any person viewing the document electronically could sort the data by the name field, thereby displaying a list of names.

            You describe three categories of requests made of county agencies for commercial purposes: (1) access to the property tax and assessment databases themselves, so that the requestors can search and generate reports of data based on their own selected queries, (2) copies of existing reports previously generated from county databases for reasons independent of the public records request, and (3) newly created reports for specific information from the databases. Your request causes us to consider whether providing access under these circumstances implicates the commercial purposes prohibition differently than providing access to static, hard copy documents. Assuming it does, you ask whether it is proper for agencies to redact names of individuals from the lists or data compilations they provide pursuant to these kinds of requests, if the requests are made for commercial purposes.

ANALYSIS

            We first consider whether a request to view a database or other record that can itself generate a list of individuals may implicate the commercial purposes prohibition. We assume, as you describe in your letter, that the commercial purposes underlying such requests are “readily acknowledged.” Thus, we consider here only whether the types of requests you describe may be considered requests for “lists of individuals” such that they could implicate the commercial purposes prohibition. Having concluded that they may, we then review the options available for agencies when responding to requests that seek such records for commercial purposes.

1.         Do public records requests made for commercial purposes implicate the commercial purposes prohibition if they request electronic records that can be internally queried or sorted to display lists of individuals?

            Providing access to electronic records that can be queried or sorted to display lists of individuals implicates the commercial purposes prohibition. We begin where we always must in analyzing the PRA: with the recognition that the PRA is a “strongly worded mandate for broad disclosure of public records.” Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). Accordingly, all state and local agencies must disclose public records requested under the PRA unless a specific exemption or other statute prohibiting disclosure applies. RCW 42.56.070(1); John Doe A v. Wash. State Patrol, 185 Wn.2d 363, 371-72, 374 P.3d 63 (2016). Further, the PRA must be liberally construed and its exemptions narrowly construed in favor of disclosure. RCW 42.56.030; Wash. State Patrol, 185 Wn.2d at 371.

            Relevant here, the commercial purposes prohibition instructs that agencies “shall not” “give, sell or provide access to lists of individuals” when requested for a commercial purpose:

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            This chapter shall not be construed as giving authority to any agency . . . to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies . . . shall not do so unless specifically authorized or directed by law[.]

RCW 42.56.070(8). The operative language has been a part of the PRA since it was first passed by initiative in 1972. Laws of 1973, ch. 1, § 26(5) (Initiative Measure No. 276, approved Nov. 7, 1972). We refer to this statute as a “prohibition” because it does more than simply authorize agencies to withhold exempt information in response to public records requests. Rather, it restricts the agencies from giving, selling, or providing access to lists of individuals when they are requested for commercial purposes. RCW 42.56.070(8); see also SEIU Healthcare 775 NW v. Dep’t of Soc. & Health Servs., 193 Wn. App. 377, 400, 377 P.3d 214 (2016) (referring to RCW 42.56.070(8) as a “prohibition”). Whether the commercial purposes prohibition is called an exemption or a prohibition, however, the PRA mandates that the PRA be liberally construed in favor of disclosure. SEIU Healthcare 775 NW, 193 Wn. App. at 377 (citing RCW 42.56.030, .070(1)).

            The PRA does not define “lists of individuals.”[4] We have previously defined the term to mean “[a]ny grouping of names of individuals in a row or series[.]” 1975 AGO No. 15, at 8. Consistent with that definition, we concluded in 1980 that records identifying owners of taxable personal property in alphabetical order were “lists of individuals” prohibited from disclosure by RCW 42.56.070(8). 1980 AGO No. 1, at 15. We also determined in the same opinion that documents identifying real property subject to taxation, organized by property parcel description, were not “lists of individuals” subject to the commercial purposes prohibition. 1980 AGO No. 1, at 15. In so concluding, we found that “the mere fact” that a real property assessment roll “also includes an identification of [the properties’] owner (or owners) does not change its basic character” as a list of real properties. 1980 AGO No. 1, at 15.

            As you note in your request, the availability and use of technology in 1980 was different than it is today. At the time we authored our opinion in 1980, counties were operating in a paper world, and generally maintained real property tax information in traditional “plat and description book[s].” AGO 1980 No. 1, at 14; see RCW 84.40.160. These were originally static, hard copy records containing “in numerical order a complete list of all lands or lots subject to taxation,” and secondarily showing “the names and owners” and other information about each of the properties listed. AGO 1980 No. 1, at 14 (describing the assessment roll); RCW 84.40.160. In the context of the immutability of the record at issue, we reasoned in our 1980 opinion that the fact that requestors could use information on assessment rolls to create their own separate lists of property owners did not “change [the] basic character” of real property assessment rolls as listings of properties rather than of persons. AGO 1980 No. 1, at 15. Likewise, in a letter opinion issued in 1973, we concluded

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that the practice of allowing requestors to examine utility service contract applications from which they were compiling their own lists of persons was not equivalent to providing access to lists of individuals. AGLO 1973 No. 113. We referred to that opinion later for the proposition that the commercial purposes prohibition “does not prohibit access to raw data from which a person could construct his own list of individuals for commercial purposes.” AGO 1975 No. 15, at 7.[5]

            Our opinions in 1973, 1975, and 1980 concluded that providing paper records that included names of persons did not provide access to “lists of individuals” just because the requestors could create their own separate lists of persons from the information contained in those records. We contemplated at that time that the requestors would be creating entirely new documents by copying names they identified from the public records onto entirely separate lists. Determining whether a particular record contained a “list of individuals” by reference to whether it grouped names of persons by row or series was easier to do in a paper era.

            In the electronic world, however, records that do not initially appear to be lists of individuals can easily be displayed as such. For example, real property databases might include one or more fields that identify property owner names. Those viewing or searching that database, in turn, could instruct the database to return search results organized by the property owner fields, followed by address fields. Thus, by accessing the database, the requestors have obtained access to lists of persons. Likewise, electronic reports generated out of database searches can display lists of individuals simply by sorting the reports by the relevant data fields. Consider, for example, an Excel spreadsheet in which the first column lists real property descriptions, but the second column lists last names of the property owners. Even if originally organized according to property description, the requestors would only need to sort the report by the “last name” column in order to view a list of the property owners in alphabetical order.

            These modern examples are materially different than those discussed 40 years ago. Now, searching and sorting technology means that providing access to certain electronic records, even those that do not initially appear to be lists of persons, may, in fact, be providing access to lists of individuals. Users need not create any additional documents in order to view a list of individuals directly from the records provided to them.

            Agencies will still have to assess on a case-by-case basis whether providing certain records is equivalent to providing access to lists of individuals. As we noted earlier, “lists of individuals” is undefined in the PRA, and this is an area the legislature may wish to clarify in light of evolving technology. As we have previously defined “lists of individuals” to include “[a]ny grouping of names of individuals in a row or series,” 1975 AGO No. 15, at 8, we believe that this includes

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names that are stored in databases or other electronic records by field, such that they can be queried or sorted into lists of names within the records themselves. In deciding whether providing records implicates the commercial purposes prohibition, agencies will need to consider the nature of the data contained in the records, how it is stored, and how it may be queried or sorted within the records to display lists of names, even if the records do not initially display lists of individuals.

            Where the records at issue do contain lists of individuals, and the underlying purpose of the request is commercial, we conclude that RCW 42.56.070(8) prohibits agencies from providing access to those records.

2.         If so, is it proper to redact names of individuals from records provided in response to such requests?

            You next ask whether, in response to public records requests made for a commercial purpose, it is proper to redact names of individuals before providing the responsive databases or electronic records. To answer this question, we make two assumptions. First, we assume the agency has already determined that the databases, reports, or other records at issue are responsive to the requests. Second, we assume that the agency has already determined that the records contain lists of individuals, either on their face or by virtue of searching and querying capabilities inherent to the records. As noted above, this will likely be something the agencies will have to assess on a case-by-case basis.

            With these assumptions, we next consider whether it would be proper for the agencies to redact or remove the names of the individuals from the records requested before producing them. This inquiry leads us to a decision tree outlined by the Washington Supreme Court in Resident Action Council v. Seattle Housing Authority, 177 Wn.2d 417, 438, 327 P.3d 600 (2013).

            After determining that an exemption (or prohibition) applies, Resident Action Council instructs agencies to consider whether the exemption applies to the entire records or only certain information contained in the records. Here, we conclude from its plain language that the commercial purposes prohibition forbids agencies from providing access only to certain information contained in their records—specifically, “lists of individuals”—not to the entire records that contain that information. RCW 42.56.070(8). If the prohibition were intended to exempt out entire records containing lists of individuals, it would have identified the prohibition with respect to providing access to “records containing lists of individuals” rather than prohibiting access to “lists of individuals.” See also Resident Action Council, 177 Wn.2d at 433 (discussing exemption of records vs. exemption of information).

            The final inquiry under Resident Action Council is whether the exempt (or prohibited) information is redactable. Id. at 437-38, fig. 1. If so, the record must be redacted and disclosed, because Resident Action Council instructs that “an agency must produce otherwise exempt records insofar as redaction renders any and all exemptions inapplicable.” Id. at 432-33 (applying prior case law and RCW 42.56.210, .070); see also id. at 441. If not, disclosure is not required. Id. at 437-38. Rather, disclosure is prohibited. RCW 42.56.070(8). Thus, in answer to your second

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question, we believe that if it is possible, agencies can and should redact names from records containing lists of individuals pursuant to RCW 42.56.070(8).

            You have not asked us to analyze whether specific electronic records are capable of redaction, nor would doing so be helpful in future cases, due to the fact-specific and technology-dependent nature of that analysis. Moreover, you seem to imply that redaction is possible by only asking in your opinion request whether it would be proper. If the records requested are capable of redaction, redaction of exempt information would be appropriate. Resident Action Council, 177 Wn.2d at 437. An Excel spreadsheet comes to mind as an example of a record in which names could be redacted before producing the record, even electronically.

            If, however, the names of individuals cannot be redacted from the records requested, the agencies should next determine whether they can use information technology expertise to provide customized access to or data compilations from the records at issue. See RCW 42.56.120(3); WAC 44-14-05004. A request for access to databases that do not have the current capability of hiding fields from the user might be an example of this kind of scenario. Agencies may charge for providing customized service when they determine that requests would require the use of information technology expertise to prepare data compilations or provide customized access services, and where such customized access services are not already being used by the agency for other agency purposes. RCW 42.56.120(3)(a)(i). This charge may reimburse the agency up to the actual cost of providing the services necessary to provide access to the records requested. RCW 42.56.120(3)(a)(ii).

            Before charging for customized access, however, the agencies must first notify the requestors of the customized service charges that will be necessary, and provide the requestors with the opportunity to amend their requests in order to avoid or reduce the cost of the customized service charges. RCW 42.56.120(3)(b). At this point, alternatives to providing the expense-incurring customized access should be discussed, such as providing reports or other kinds of data compilations with the names redacted in lieu of access to the underlying databases. See also WAC 44-14-05004 (“Before resorting to customized access, the agency should confer with the requestor to determine if a technical solution exists not requiring the specialized programming. An agency must notify the requestor to provide an explanation of the service charge including why it applies, a description of the specific expertise, and a reasonable estimate of the cost of the charge. The notice must also provide the requestor the opportunity to amend his or her request in order to avoid or reduce the customized service charge.”).

            The alternatives discussed may include the creation and production of a new report from the underlying database sought in the public records request. Although agencies do not generally have any obligation to create records in response to public records requests, see WAC 44-14-04003(6), they may have an obligation to produce information from existing databases, which are themselves public records. Fisher Broad.-Seattle TV LLC v. City of Seattle, 180 Wn.2d 515, 524, 326 P.3d 688 (2014). As the Supreme Court noted in Fisher Broadcasting, there is not always a clear line drawn between creation and production of public records in the context of electronic databases. Id. Moreover, “sometimes it is easier for an agency to create a

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record responsive to the request rather than collecting and making available voluminous records that contain small pieces of the information sought by the requestor or find itself in a controversy about whether the request requires the creation of a new record.” WAC 44-14-04003(6). Thus, creating customized reports from databases may be a satisfactory resolution to a public records request that seeks access to a database that contains exempt information.

CONCLUSION

            In sum, we conclude that the prohibition in RCW 42.56.070(8) extends to electronic records that may be internally sorted or queried to display lists of individuals. In response to requests seeking such records, agencies should consider whether they can produce the records with redaction, whether the requestors are willing to modify their requests to avoid disclosure of lists of individuals, or whether the agencies can provide customized access pursuant to RCW 42.56.120(3).

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

ALAN SMITH
Assistant Attorney General

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