WSR 17-19-037

PROPOSED RULES

DEPARTMENT OF COMMERCE

[Filed September 11, 2017, 3:48 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 17-15-089.

Title of Rule and Other Identifying Information: Chapter 365-10 WAC, Public records—Disclosure.

Hearing Location(s): On October 30, 2017, at 10:00 a.m., at 1011 Plum Street S.E., Room 407, Olympia.

Date of Intended Adoption: October 31, 2017.

Submit Written Comments to: Shannon Goudy, P.O. Box 42525, Olympia, WA 98504-2525, email Shannon.goudy@commerce.wa.gov, by October 30, 2017.

Assistance for Persons with Disabilities: Contact Jaime Rossman, phone 360-725-2717, TTY 711, email jaime.rossman@commerce.wa.gov, by October 23, 2017.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making is needed to update commerce's WAC implementing the Public Records Act to reflect changes to the act in the 2017 legislative session.

Reasons Supporting Proposal: Changes to the Public Records Act during the 2017 legislation require commerce to amend its public records disclosure rules. These include changes adopted by commerce on an emergency basis in July 2017.

Statutory Authority for Adoption: EHB 1595 (chapter 304, Laws of 2017), chapters 42.56 and 43.330 RCW.

Statute Being Implemented: Chapters 42.56 and 43.330 RCW.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Shannon Goudy, 1011 Plum Street S.E., Olympia, WA 98504, 360-725-2706.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. Commerce is not an agency listed under RCW 35.05.328 [34.05.328] (5)(a).

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rule content is explicitly and specifically dictated by statute.

September 11, 2017

Jaime Rossman

Rules Coordinator

AMENDATORY SECTION (Amending WSR 17-13-124, filed 6/21/17, effective 7/22/17)

WAC 365-10-050 Request for public records.

(1) Any person wishing to inspect or copy public records of the department may submit the request in writing to the department, attn. Public Disclosure Officer or via email at publicdisclosure@commerce.wa.gov. The department's current mailing address can be found in WAC 365-04-030. The request should include the following information:

(a) Name of requestor;

(b) Address of requestor;

(d) Identification of the public records sought adequate for the public ((records)) disclosure officer to locate the records; and

(e) The date and time of day of the request.

(2) The public ((records)) disclosure officer may accept public records requests by telephone or in person during the department's normal business hours. However, the requesting party may be asked to submit the request in writing or the public ((records)) disclosure officer may confirm receipt of the request and restate the substance of the request in writing.

(3) Nothing 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.

(4) Requests must be for identifiable records. A request for all, or substantially all, of the department's public records is not a valid request.

AMENDATORY SECTION (Amending WSR 17-13-124, filed 6/21/17, effective 7/22/17)

WAC 365-10-060 Fees—Inspection and copying.

(1) The department's records are diverse in nature and are preserved in a wide variety of formats. Thus, it would require significant time and resources to compile actual costs of providing records. The needed resources to do a cost study are not currently available and, therefore, the department finds that it would be unduly burdensome to calculate the actual costs of copying public records.

(2) The department may charge the default fees for copies of paper and electronic public records as established in RCW 42.56.120.

(3) No fee shall be charged for the inspection of public records.

(((2) The charge for providing public records may be the actual cost incident to providing the records.

(a) The charge may include the actual cost of the postage or delivery, including the cost of the shipping container, cost of duplicating tape recordings, videotapes, photographs, slides, disks or similar media.

(b) There will be no charge for e-mailing electronic records to a requestor, unless another cost applies.

(3) If determining the actual cost is too burdensome or if the cost cannot be determined, the department may charge fifteen cents for each page, however produced, and the actual postage or delivery charge and the cost of any container or envelope used to mail the public records to the requestor.))

(4) The public disclosure officer may waive fees for copies of public records when collecting the fees would not be cost effective to the department.

(5) Before beginning to copy public records, the public records officer may require:

(a) A deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor;

(b) The payment of the remainder of the copying costs before providing all the records; or

(6) The department will not charge sales tax when it makes copies of public records.

(((5))) (7) Payment must be made by cash in the exact amount charged, check, or money order to the department.

AMENDATORY SECTION (Amending WSR 17-13-124, filed 6/21/17, effective 7/22/17)

WAC 365-10-090 Disclosure procedure.

(1) Within five business days of receipt of the public records request, the public ((records)) disclosure officer will do one or more of the following:

(a) Make the records available for inspection or copying;

(b) If copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon, send the copies to the requestor;

(d) If the request is unclear or does not sufficiently identify the requested records, ((obtain)) request clarification from the requestor((.)) and, to the greatest extent possible, provide a reasonable estimate of time to respond to the request. After receiving clarification from the requestor, the public ((records)) disclosure officer may then revise the estimate of when records will be available; or

(e) Deny the request.

(2) In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public ((records)) disclosure officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure pursuant to RCW 42.56.540. The notice to the affected persons will include a copy of the request.

(3) Some records are exempt from disclosure, in whole or in part. If the department believes that an entire record is exempt from disclosure and should be withheld, the public ((records)) disclosure officer will identify the record, state the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, the public ((records)) disclosure officer will redact the exempt portions, provide the nonexempt portions, state the specific exemption and provide a brief explanation of why the portions of the record are exempt from disclosure.

(4) When the requestor either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay the deposit or final payment for the requested copies, the public ((records)) disclosure officer will close the request and indicate to the requestor that the department has closed the request.

(5) When a response to a public records request is complex or involves a large number of records, the public ((records)) disclosure officer may provide access for inspection and copying in installments pursuant to RCW 42.56.080.

(a) The requestor will be notified when an installment is ready for inspection. If, within thirty calendar days, the requestor fails to inspect the entire set of records or one or more of the installments, the public ((records)) disclosure officer may close the request.

(b) When the request is for copies of public records, the public ((records)) disclosure officer may require payment for each installment either prior to providing the installment or prior to providing subsequent installments. In addition, the requestor may be required to provide a deposit up to ten percent of the estimated cost of copying all records selected by the requestor. If the requestor fails to pay the required cost within thirty calendar days, the public ((records)) disclosure officer may close the request.

(6) The process for electronic public records is the same as paper public records.

(a) When a requestor requests records in an electronic format, the public disclosure officer will provide available nonexempt electronic public records or portions of such records that are reasonably locatable in an electronic format that is used by the agency and is generally commercially available, or in a format that is reasonably translatable from the format in which the agency keeps the record, or as otherwise agreed to between the requestor and the public disclosure officer.

(b) Whenever possible, the department will provide records in electronic format. If the department has only a paper copy of the record, the department, when feasible, may scan the paper record and provide the resulting electronic copy to the requestor. If the department maintains the record in electronic format, the record will be provided in the maintained electronic format unless the requestor specifically asks to receive the record in paper copies or it is otherwise not feasible to provide the record in electronic format.

(c) If a record exists on a web page, the department will respond to a request for the record by providing the link to the record on the web page.

(7) The department is not required to create a record that does not otherwise exist.

(8) If, within thirty calendar days, the requestor fails to respond to a request for clarification, and the entire request is unclear, the request will be closed. Otherwise, the public records officer will respond to those portions of the request that are clear pursuant to this section.

AMENDATORY SECTION (Amending WSR 17-13-124, filed 6/21/17, effective 7/22/17)

WAC 365-10-100 Exemptions to public records disclosure.

(1) The department reserves the right to determine that a public record requested is exempt, in whole or in part, under the provisions of chapter 42.56 RCW or other applicable provision of law.

(2) In addition, there are exemptions outside the Public Records Act that restrict the availability of some documents held by the department for inspection and copying;

(3) The department is prohibited by statute from disclosing lists of individuals for commercial purposes pursuant to RCW 42.56.070(9). If a list of individuals is requested, the requestor will be required to state the purpose of the request.

AMENDATORY SECTION (Amending WSR 17-13-124, filed 6/21/17, effective 7/22/17)

WAC 365-10-120 Review of denials of public records request.

(1)(a) Any person who has been denied an opportunity to inspect or copy a public record by the department, or who believes that the department has not made a reasonable estimate of the time required to respond to a public record request, or who believes the department has not made a reasonable estimate of charges to produce copies of public records, may petition the department for prompt review of its decision.

(b) The petition shall be in writing and shall include a copy of, or reasonably identify, the written statement by the public disclosure officer denying the request or providing the estimate.

(c) The petition shall be sent to the public disclosure officer who shall promptly provide the petition and any other relevant information to the department official designated by the department to conduct the review.

(2) The designated official will immediately consider the petition and either affirm or reverse the denial or the estimate. ((This review will be complete within two business days following the department's receipt of the petition, or within such times as mutually agreed by the department and the requestor.))

(3) Administrative remedies shall not be considered exhausted until the department has returned the petition with a decision or until the close of the second business day following denial of inspection, whichever occurs first.

(4) Any person may obtain court review of denials of public records requests pursuant to RCW 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.