WSR 17-15-072

EMERGENCY RULES

[Order 17-160—Filed July 14, 2017, 11:47 a.m., effective July 23, 2017]

Effective Date of Rule: July 23, 2017.

Purpose: Amend rules for calculation of actual costs of producing copies of public records declared to be unduly burdensome – adoption of statutory fee schedule.

Statutory Authority for Adoption: RCW 42.56.120.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: Under the Public Records Act (PRA), agencies have the ability to charge a requester for certain costs associated with providing copies of records in response to the requester's public records request. In the 2017 legislative session, the legislature amended the provision of the PRA that governs charges for providing public records. Under the law prior to the 2017 amendments, agencies could only charge for photocopies, not scanned records and other electronic records, but the majority of records are now provided in electronic format. The 2017 amendments allow agencies to charge requesters for things like scanning records, providing electronic records via email or other electronic delivery means, and providing records on a CD or thumb drive.

HB [EHB] 1595, passed in the 2017 legislative session, amended RCW 42.56.120, the provision of the PRA that governs agency charges to requesters for providing copies of public records. These amendments in HB 1595 were designed to modernize this provision to reflect changes in the way agencies provide copies of records to requesters.

HB [EHB] 1595 becomes law on July 23, 2017, and a rule must be in place that establishes the actual costs of producing records, or a rule must be in place that declares the calculation of actual costs would be "unduly burdensome." Otherwise an agency would not be able to impose fees on PRA requestors. The Washington department of fish and wildlife (WDFW) is taking the latter approach and will declare that it will be "unduly burdensome" to calculate actual costs and will file an emergency rule. This declaration will allow WDFW to utilize the statutory default fee schedule created by the legislature in the 2017 amendments starting on July 23, 2017, the date the legislation goes into effect, and to be in full compliance with the PRA, as amended. The agency will be filing a preproposal statement of inquiry to begin the permanent rule-making process.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: July 14, 2017.

Joe Stohr

for J. W. Unsworth

Director