PREPROPOSAL STATEMENT OF INQUIRY
Subject of Possible Rule Making: Rules are being drafted to amend provisions of the Department of Corrections public records regulations, chapter 137-08 WAC. These rules contain the process for obtaining or reviewing public records from correctional facilities within the Department of Corrections.
Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 42.17.250, Public Records Act.
Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The rules are required by the Public Disclosure Act, chapter 42.17 RCW, as amended. Once adopted, these rules will apply on a state-wide basis, to all institutions and other correctional facilities within the Department of Corrections. Goal of amended rule: To bring the agency in full compliance with RCW 42.17.250.
Process for Developing New Rule: Negotiated rule making and agency study. Public comments and recommendation in the course of drafting amended rules.
Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Kay Wilson-Kirby, (360) 753-2345, fax (360) 664-2009, Department of Corrections, Mailstop 41114, Olympia, Washington 98504-1114. The proposed WAC will be distributed to persons expressing interest. All comments will be considered before final adoption.
June 18, 1999
Joe Lehman
Secretary
OTS-3100.1
AMENDATORY SECTION(Amending Order 82-3, filed 1/26/82)
WAC 137-08-010
Purpose.
The purpose of this chapter ((shall be)) is to ensure
((compliance by)) that the department of corrections complies with the provisions of the Public
Records Disclosure Act, RCW 42.17.250 through ((42.17.340)) 42.17.348.
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-010, filed 1/26/82.]
(1) (("Public records" include any writing containing
information relating to the conduct of government or the performance of any governmental or
proprietary function prepared, owned, used or retained by the department regardless of physical
form or characteristics.
(2) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof; and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents.
(3) "Department" means the department of corrections.
(4) "Client" means any person or organization about whom the department has a record.
(5) "Disclosure" means inspection and/or copying.
(6) "Denial of disclosure" denotes any exempting from disclosure of any public record.)) "Offender" means any person is or was committed to the custody of the department, whether for purposes of a sentence of confinement in prison, community supervision, community placement, probation, or parole.
(2) "Unit" means an office or subdivision of the department, including a prison or work release facility.
(3) "Department" means the department of corrections.
(4) The terms "public record" and "writing" have the meanings given them by RCW 42.17.020.
(5) "Disclosure coordinator's designee" means records review officer, legal liaison, or other department staff specifically trained in public disclosure.
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-020, filed 1/26/82.]
(1) A written request((s)) for ((any
identifiable)) public records may also be ((initiated)) made at any ((office)) unit of the
department during normal business hours. The department shall not respond to telephonic
requests for disclosure of public records, because of the likelihood of confusion. The department
shall instruct the requestor to submit the request in writing or in person.
(2) The department shall ((at all times take the most timely possible action on requests for
disclosure, and shall be required to)) respond in writing within ((ten)) five working days of
receipt of the request for disclosure. If the department(('s failure)) fails to ((so)) respond ((shall
entitle)) within five working days, the person seeking disclosure ((to)) may petition the public
disclosure officer for relief pursuant to WAC 137-08-140.
(3) The department maintains different records in its several units. In particular, records relevant to the operation of a specific prison or other unit of the department may be kept only in that prison or unit. Similarly, records relevant to an offender may be maintained only at the prison or other unit where the offender is located. Thus, the department may need to refer a request for records made at one unit to the unit where the records are kept.
(4) Incarcerated offenders must submit all requests for public records in writing, in the form required by their prison.
[Statutory Authority: RCW 10.97.080 and 42.17.320. 86-10-010 (Order 86-05), § 137-08-060, filed 4/29/86. Statutory Authority: RCW 10.97.080, 42.17.250 and 72.01.090. 85-13-020 (Order 85-06), § 137-08-060, filed 6/10/85. Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-060, filed 1/26/82.]
The department shall designate a public
disclosure officer, located in the ((state)) department's administrative office((, who)) in Olympia.
The public disclosure officer shall be responsible for implementing the department's rules
regarding disclosure of public records, ((coordination of staff in this regard, and generally
insuring compliance by)) developing the department's state-wide training for records officers and
other department personnel involving disclosures, ensuring that the department's staff comply
with public records disclosure requirements, and acting as the department's final level of review
for public disclosure appeals.
[Statutory Authority: RCW 10.97.080 and 42.17.320. 86-10-010 (Order 86-05), § 137-08-070, filed 4/29/86. Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-070, filed 1/26/82.]
Each departmental administrative
unit((, for example, each institution,)) shall designate ((from among its employees at least)) one
public disclosure coordinator((, who)). The public disclosure coordinator shall:
(1) ((Have responsibility to)) Respond to ((written)) requests for disclosure of ((the
department's nonexempt)) public records physically located in that office; ((and))
(2) Refer the person requesting disclosure to any other office where the record is located, and assist further in the disclosure process; and
(3) Verify, if necessary, the identity of any person requesting information.
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-080, filed 1/26/82.]
(1) Unless waived by a public
disclosure coordinator, all requests for the disclosure of a public record must be in writing
((identifying the record sought with reasonable certainty)). The written request ((may)) must
include:
(a) The name of the person requesting the record;
(b) The ((time of day and calendar)) date on which the request is made((,)); and((;))
(c) The nature of the request, identifying with reasonable certainty the records sought.
(2) ((A)) An oral request for disclosure ((shall)) must be made during customary business
hours.
(3) ((If the public record contains material exempt from disclosure pursuant to law,
including those laws cited in WAC 137-08-150, the department must provide the person
requesting disclosure with a written explanation for the nondisclosure, pursuant to WAC 137-08-130.
(4) Any person continuing to seek disclosure, after having received a written explanation for nondisclosure pursuant to WAC 137-08-130, may request a review under the provisions of WAC 137-08-140.
(5))) When a person's identity is relevant to an exemption, the department may require
that person ((may be required)) to provide personal identification.
(((6) Nothing in this section or elsewhere in this chapter shall be construed to require the
department to compile statistics or other information from material contained in public records,
where doing so would unduly interfere with other essential functions of the department and is not
required for litigation by rules of pretrial discovery.))
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-090, filed 1/26/82.]
(((1) If a client requests disclosure to a representative, that request must be
accompanied by a written release signed by the client, except that, as an accommodation to the
client and if the legislator or attorney representing the client can provide assurance that the client
has authorized disclosure, the client's record may be briefly discussed with that legislator or
attorney so long as there is neither physical inspection nor copying of client records by that
representative. A)) The department will disclose confidential records of an offender to another
person if the offender signs a written release authorizing disclosure. The written release must
include:
(((a))) (1) The identity of the person(s) or organization(s) to whom disclosure is to be
made;
(((b))) (2) An identification of the record, or portion thereof, to be disclosed; and
(((c))) (3) A statement of when the authorization for disclosure expires.
(((2) Disclosures of information to a representative shall be made to the same extent as to
the client.
(3) The legal guardian of a client has any and all rights accorded to a client by this section.))
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-100, filed 1/26/82.]
(1) ((No)) The department will not
charge a fee ((shall be charged)) for the inspection of public records.
(2) ((The department shall collect a fee of twenty cents per page plus postage to
reimburse itself for the cost of providing copies of public records.)) Cost shall be determined by
the department in accordance with the following formula:
Pursuant to recent changes in chapter 42.17 RCW, the department will now charge the actual cost of providing copies of public records, including applicable postage.
| Salary: | $2,918.33 median salary per month represents the categories of staff who are most commonly involved in processing public disclosure request throughout the department. |
| $2,718.33/divided by 174 average hours in a month =15.62 hourly rate/divided by 60 minutes = .26 cents per minute. |
| Benefits: | $706.76 per month/divided by monthly salary $2,718.33 = 26% of salary is benefits. .2599 or .26 cents per minute x 26% for benefits = 7 cents per minute. Benefits can range from 26% to 40% of salary. We chose the lower percentage which more accurately reflects the percentage paid for benefits of this salary group. |
| Costs: | .26 cents salary + .07 cents benefits per minute =.33 cents per minute salary and benefits. |
The following amounts reflect the actual cost the department is charged for purchasing these items: These costs are added together to come up with a total cost.
| Description | Cost | Total | |
| The number of
pages of documents
for either 8 1/2 x 11
or 8 1/2 x 14 paper. |
at $0.01 per page. | ||
| Add | |||
| The number of minutes of salary time. | at $0.33 per minute. | ||
| Add | |||
| The number of minutes of photocopies cost. | at $0.01 per minute. | = |
.35 cents per page. |
| Add | |||
| 10 x 13 Kraft envelope. | at $0.08 per envelope one time cost only unless more than one envelope is needed | ||
| or | |||
| Plain franked envelope. | At $0.01 per envelope one time cost only same as above. | ||
| Add | |||
| Postage | at . . . . . . . . . | ||
| Total costs for request | . . . . . . . . . |
||
(4) The secretary of the department or his designee is authorized to waive any ((of the
foregoing copying costs)) fee for copies or postage.
[Statutory Authority: RCW 10.97.080, 42.17.250 and 72.01.090. 85-13-020 (Order 85-06), § 137-08-110, filed 6/10/85. Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-110, filed 1/26/82.]
A requestor may inspect the original
public records ((shall be disclosed)) only in the presence of a public disclosure coordinator or his
or her designee, who shall withdraw the records if the ((person requesting disclosure)) requestor
acts in a manner ((which)) that will damage or ((substantially)) disorganize the records, or
interfere ((excessively)) with other essential functions of the department. ((This section shall not
be construed to prevent the department from accommodating a client by use of the mails in the
disclosure process.))
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-120, filed 1/26/82.]
(((1))) The public disclosure coordinator or
designee shall review file materials prior to disclosure.
(((2) If the file does not contain materials exempt from disclosure, the public disclosure
coordinator shall ensure full disclosure.
(3))) If the file ((does)) contains materials exempt from disclosure, the public disclosure
coordinator or designee shall deny disclosure of those ((exempt portions of the file)) materials,
and shall((, at the time of the denial, in writing, clearly)) specify ((the reasons for the denial of
disclosure, including a statement of)) in writing the specific exemptions or reasons authorizing
the withholding of the ((record)) materials and a brief explanation of how the exemption or
reason applies. The remaining, nonexempt materials shall be fully disclosed.
The public disclosure coordinator shall also inform the requestor that he or she may seek review by the public disclosure officer, of any denial of disclosure.
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-130, filed 1/26/82.]
(1) If the person requesting
disclosure disagrees with the decision of a public disclosure coordinator denying disclosure of a
public record, ((such)) the person may petition the department's public disclosure officer for
review of the decision denying disclosure. ((The form used by the public disclosure coordinator
to deny disclosure of a public record shall clearly indicate this right of review.))
(2) Within ((ten)) two working days after receipt of a petition for review of a decision
denying disclosure, the public disclosure officer shall review the decision denying disclosure,
and advise the petitioner, in writing, of the public disclosure officer's decision on the petition. Such review shall ((be deemed completed at the end of the second business day following denial
of disclosure, and shall)) constitute final agency action for the purposes of judicial review.
[Statutory Authority: RCW 10.97.080 and 42.17.320. 86-10-010 (Order 86-05), § 137-08-140, filed 4/29/86. Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-140, filed 1/26/82.]
(((1))) Unless prohibited by law,
information may be disclosed by the department to outside agencies, including other state of
Washington agencies, or agencies of other states.
(((2))) Outside agencies receiving information pursuant to ((subsection (1) of)) this
section shall be ((thereby)) subject to the same standards of disclosure as are required of the
department.
[Statutory Authority: RCW 42.17.250. 82-04-023 (Order 82-3), § 137-08-170, filed 1/26/82.]
The following sections of the Washington Administrative Code are repealed:
| WAC 137-08-105 | Correction of erroneous information. |
| WAC 137-08-150 | Exemptions to public records disclosure. |
| WAC 137-08-160 | Qualifications on nondisclosure. |