In 1972, Washington State voters passed Initiative 276, the Public Disclosure Act, by a substantial margin. The initiative contained four measures intended to open up government, including one designed to ensure public access to government-held records. This measure, popularly known as Washington's Freedom of Information Act (FOIA), provides a mechanism by which individuals can access information held by the government, subject to only a few exemptions. One such exemption prevents disclosure which is an "unreasonable invasion" of personal privacy. The Washington Supreme Court greatly expanded the scope of this personal privacy exemption in In re Rosier. Prior to this decision, the exemption had been interpreted potentially to exclude only information which was highly offensive to a reasonable person. After Rosier, any information which is linked to an individual and which reveals something "unique" about that individual may be exempted, subject to a balancing of the public and the private interest. This expanded protection of privacy, however, is both bad policy and an unwarranted interpretation of the FOIA. The supreme court ought to interpret the privacy exemption in a manner that acknowledges the specific circumstances which justify the protection of the individual's privacy under the FOIA. Privacy ought to be protected, for example, when the government has illicitly acquired the information, has promised confidentiality in order to get more accurate information, or when disclosure would chill the individual's exercise of fundamental rights. The privacy exemption should strictly protect privacy in such circumstances. This interpretation would make disclosure more predictable, better protect privacy, and best implement the FOIA's main purpose of assuring free and open access to government-held information.
Are Privacy and Public Disclossure Compatible?: The Privacy Exemption to Washington's Freedom of Information Act—In re Rosier, 105 Wn. 2d 606, 717 P.2d 1353 (1986),
62 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol62/iss2/3