# • Supplemental certification ofthe Attorney General January 23, 1987 (August 20, 1986 AuthorizationApplication)

Introduction

OnAugust 20, 1986, the state submitted an application for authorization for all non-HSWA federal program amendments between January 1, 1985 and June 30, 1985. EPA provided



# • comments on such application on November'S, 1986, requesting further action by the state agency and supplemental certification from the Attorney General. This statement is provided in response to that request and addresses only those items which indicated a need for action by the Attorney General

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1. Confidential Business Information

a. Definition

RCW 43.21A.160 addresses the definition of and procedure for certification ofbusiness records as confidential. It states: Whenever any records or other information furnished under the authority of this chapter to the director, the department, or any division of the department, relate to the processes ofproductionunigue to the owner or operator thereof, ormay affect adversely the competitive position ofsuchowner or operator ifreleased to the pUblic or to

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• 1 a competitor, the owner or operator of such process or production may so certify, and request that such information or records be made available only for the confidential use of the director, the department, or the appropriate division of the department. The director shall give consideration to the request, and if such action would notbe detrimental to the pUblic interest and is otherwise within accord with the policies and purposes of this chapter, may grant the same. (Emphasis added). To be certified as confidential a business record must be demonstrated to be either related to "processes of production unique to the owner or operator," or such that disclosure to the public
or a competitor "may affect adversely the competitive position of such owner or operator." The director of Ecology may grant confidential certification upon a determination that one or both of these tests are met and that such certification would not be detrimental to the public interest.
Although it does not use the term directly, RCW 43.21A.160 essentially sets out a process for protecting "trade secrets."I It protects

Black's LawDictionary, 5thEd. 1979 defines trade secret as follows: A formula, pattern, device or compilation of. information which is used in one's business and which gives one opportunity to obtain advantage
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# • production processes urnque to the owner, which processes allow the owner to gain a competitive advantage over those who do not knowthe process. Itprovides no greaterprotection. The definitions, exemptions, and protections of 2 CFR 2.201, which also reference 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905, not only appear, on their face, to give confidentiality protection to broader classes of records (e.g. styles of work, statistical data, expenditures and other financial information), they define business confidentiality only inbroad"terms, to "include the concept of trade secrecy" see 40

tection to limited trade secret information. It lS, therefore, my opinion that the state, through RCW 43.21A.160, does not define confidential business information any more broadly t.ha.: 40 CFRPart 2. 

# • CFR 2.201(e)

. It is clear the state extends pro-



# • b. Timing ofRequest; Release of Information

Other than as set forth above, no procedural requirements exist defining preciselywhen a claim

over competitors who do not know oruse It, Rimes v. Club Corp. ofAmerica, Tex.Civ.App., 542 S.W.2d 909, 913. Aplan or process, tool, mechanism, or compound known only to its owner and those ofhis employees to whom it is necessary to confide it. A secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value. -3-

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• 2. ofconfidentiality ofbusiness informationmustbe made. This could be addressed in administratively adopted rules either pursuant to RCW43.21A.080, the general rule making authority of the Department, or the Public Disclosure Law, orboth. However, it is implicit in RCW 43.21A.160 that the request for confidentiality mustbe submittedwith the records. If it is not, the Departmenthas the authority and indeed, the duty to treat such records just as it would any other public record. See ch. 42.17 RCW. In the absence of a request for certification as confidential at the time ofsubmission to the agency, the records wouldbe disclosable under ch

. 42.17 RCW. No notice to the affected business would be requiredunder thatAct. Again, in my opinion 43.21A.160 puts the burden on the**~wner** or operator to assert a 'trade secret' exemption from disclosure upon submission ofbusiness records. The failure to do so renders such records disclosable under the public disclosure law, without notice to the affectedbusiness.
Availability ofRecords to the Public

The exemptions from public disclosure are contained at RCW 42.17.310. The context in which these exemptions may be used is limited and has been discussed in the

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# • original certification. Essentially, the existence of
an exemption does not guarantee nondisclosure, other tests must also be met. See RCW 42.17.310(2). A



# • comparison of the nine exempt categories of 5 

### u.S.C. 552(b) and those stated at RCW 42.17.310 leads to the conclusion thatthe same types ofinformation are available to the public from the state as from EPA. This is particularly true given the narrow construction ofstate exemptions and state court's reliance on FOIAjudicial interpretations. See Hearstv. Hoppe, 90 Wn.2d 123, 580 P.2d 249 (1978). While the state's exemption list is longer, several of the exemptions are to very specific subject areas, not generally relevant to RCRA (e.g. library records). Abrief review of the exemptions demonstrates this conclusion.



# • 42.17.310 (a) Personal info

- students, patients, welfare recipients, prisoners, etc. (b) Personal info

- employees, elected officials, etc.

- to extentpersonal privacy violated (c) certain limitedtaxpayer information

(d) Intelligence, investigative information

-5- 5USC 552 See, 552(b)(6)

See, 552(b)(6)

No known similar exemption, butnot relevantto RCRA program; a very limited and specific exemption See 552(b)(7)

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• RCW 42.17.010(11) to have partofthis question answered andto haveperusedthe index to the Act andthe earlier AttorneyGeneral certification inthe mostcursorymanner to have the remainder ofthis question**answer~d.**
RCW 42.17.010(11) states 1n full:
(11) That, mindful of the right of individuals to privacy and ofthe desirability of the efficient administration ofgovernment, full access to information concerning the conductofgovernmenton ever level mustbe assured as a fundamental an necessary precon 1t10n to the sound governance ofa free society. The provisions of this chapter shall be liberally construed to promote complete disclosure of all information respecting the financing of political campaigns and lobbying, and the financial affairs of elected officials and candidates, and full access to public records so as to assure continu1ngpublic confidence of fa1rness ofelect10ns and governmental processes, and so as to assure that the pUblic interestwill be fully protected. In promoting such complete disclosure, however, this chapter shall be enforced so as to insure that the information disclosed will not be misused for arbitrary and capricious purposes and to insure that all persons reporting under this chapter will be protected from harassment and unfounded allegations based on information they have freely disclosed. (Emphasis added.) In short, those portions of ch. 42.17 RCW which deal with public records mandate full agency disclosure of all records relating to the conduct of government or performance of any governmental or proprietary

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• (e) Informationrevealing identity ofpersons who complainto investigative/ law enforcement agencies (f) Testquestions/exam data used for licenses, employmentor academic exams 

### (9) Real estate appraisals madeby or for any agency, for a limitedperiod of time only (h) Valuable formula, designs, research data, etc., ifpublic loss would occur (i) Preliminary drafts notes, intra-agencymemos, in limited circumstances (j) Records relevant to a controversy, but not available under pretrial discovery rules (k) Records, maps, etc. identifying archeological sites (1) Library records revealing identity ofusers
(m) Ferry system and highway construction financial info preliminary to bids (n) Railroad company contracts
(0) certain financial info related to export services
(p) Financial disclosures of vocational schools

-6- See 552(b)(7}

Not relevantto RCRAi no similarexemption unless through 552(b)(3} Not relevantto RCRA. No similar exemption, unless through 552(b}(3}.
No directly similar exemption. May be within 552(b)(5} See, 552(b)(5}
See, 552(b)(5)

See, 552(b)(9) Not relevant to RCRA
Not relevant to RCRA. No directly similar exemption, unless 552(b)(6). Presumably, 552(b)(3) but generally not relevant to RCRA Not relevantto RCRA. No similar exemption unless 552(b)(3). Notrelevantto RCRA. No similar exemption, unless 552(b)(3).
Not relevantto RCRA. No similarexemption, unless 552(b)(3)

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One must conclude thatthe general scheme ofexemptions is much the same, Washingtonhaving several very specific and limited exemptions which mayor may not**~xist** outside 5 U.S.C. 552, butwhich are generally.not:relevant in any fashion to RCRA. I have not searchedthe United states Code to find other statutes which may exempt from disclosure particular types offederal documents and come withinthe scope ofthe 5U.S.C. 552(b)(3) exemption.
Thus, I conclude, again, that the same types ofrecords would generally be available to the public from the state, as would be available from EPA, particularly glven the strong public policy in Washington favoring broad disclosure, and judicial decisions favoring the
same.

3. Chapter42.17 RCW: Overall Intent:

In making comments on the original certification, EPA quotes from that portion of RCW 42.17.010(11), which states inpart an intentto promote disclosure ofinformation "respecting the financing ofpolitical campaigns and lobbying and the financial affairs ofelected officials and candidates." EPA then questions whether the public disclosure law has application to "unelected government officials" and "nonpolitical permitproceedings." One only need have read one clause further in -7-

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# • function. See, RCW 42.17.020(26) for the definition of public record. The Actis applicable to all actions and proceedings ofthe State ofWashington and its various agencies. Any request for records in the context of any'proceeding must be honored, unless the records are

.not discoverable under the rules ofpretrial discovery

(i.e. privileged). While the Act also governs campaign financing, lobbyist reporting and public officials' financial affairs, it is the governing statute for disclosure ofall governmentrecords. See RCW 42.17.250 through 42.17.340.

Conclusion

• It is my firm op1n10n that all records in the possession of the State of Washington and its various agencies are generally available to the public 1n substantially the same manner as federal agency records are available. Certification of confidential business information is a narrow 'trade secret' exception and given the broad policy to disclose, will be narrowly construed as well. Datedthis z(, ofJanuary, 1987.

KATHLEEND. MIX AssistantAttorney General DepartmentofEcology State ofWashington 

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