WSR 17-22-095 PROPOSED RULES ATTORNEY GENERAL'S OFFICE [Filed October 30, 2017, 11:01 a.m.] Original Notice. Preproposal statement of inquiry was filed as WSR 17-18-091. Title of Rule and Other Identifying Information: Adding a new rule regarding the Public Records Act (PRA): WAC 44-06-092 Copying Fees—Payment; and repealing an outdated rule regarding PRA: WAC 44-06-090 Copying fees. Hearing Location(s): On December 6, 2017, at 2:30 p.m. - 3:30 p.m., at the Natural Resources Building, Room 175, 1111 Washington Street S.E., Olympia, WA 98501. Date of Intended Adoption: On or after January 3, 2018. Submit Written Comments to: Christina Beusch, 1125 Washington Street S.E., P.O. Box 40100, email ChristinaB@atg.wa.gov, fax 360-664-0228, written comments may also be submitted through the online comment form available on the web site of the office of the attorney general on the Rulemaking Activity page http://www.atg.wa.gov/rulemaking-activity, by December 1, 2017. Assistance for Persons with Disabilities: Contact Christina Beusch, phone 360-664-3801, fax 360-664-0228, email ChristinaB@atg.wa.gov; or alternate contact Melissa Brearty, rules coordinator, 360-534-4849, MelB@ATG.WA.GOV, by December 1, 2017. Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this rule making is to adopt a permanent rule that implements the state legislature's new PRA requirement and provide the necessary findings so that the office of the attorney general may continue to use the amended statutory default fee schedule that became effective July 23, 2017, and continue to waive copy fees under listed circumstances. The additional purpose of the rule is to continue to explain procedures for payment for copies. An emergency rule on this topic, WAC 44-06-092, was adopted effective July 23, 2017, and the office is proceeding with adopting the rule as a permanent rule. Finally, the office is repealing permanent WAC 44-06-090, a copying fees rule adopted under prior PRA statues [statutes]. Reasons Supporting Proposal: The PRA is chapter 42.56 RCW. The 2017 legislature amended RCW 42.56.120, section 3, chapter 304, Laws of 2017, to require that effective July 23, 2107 [2017], if an agency uses the new law's amended statutory default copy fee schedule (rather than determining actual costs of copies), the agency must have a rule declaring the reason it is not calculating actual costs is because to do so would be unduly burdensome. The office is not calculating actual costs for copying records because to do so would be unduly burdensome for the reasons specified in its emergency WAC 44.06.092. The office is adopting the rule on a permanent basis so it can continue to use the statutory default copy fee schedule. In addition, RCW 42.56.120 as amended by section 3, chapter 304, Laws of 2017, allows an agency to waive any charge assessed for public records pursuant to agency rule. The emergency WAC 44-06-092 also describes the circumstances under which the office will waive copying fees. In order to continue that waiver ability, the office is enacting WAC 44-06-092 as a permanent rule. The office also describes in that emergency rule the procedures to pay for copies. The office also is adopting that part of the rule and the remainder of the rule on a permanent basis. Finally, the office is repealing WAC 44-06-090, its copying fees rule originally adopted under former chapter 42.17 RCW because that rule is now outdated. Statute Being Implemented: RCW 42.56.120. Rule is not necessitated by federal law, federal or state court decision. Name of Proponent: Bob Ferguson, attorney general, governmental. Name of Agency Personnel Responsible for Drafting: Christina Beusch, Olympia, Washington, 360-664-3801. 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. Pursuant to RCW 34.05.328 (5)(a)(i), this agency is not mandated to comply with RCW 34.05.328. Further, the agency does not voluntarily make that section applicable to the adoption of this rule pursuant to subsection (5)(a)(ii), and to date the joint administrative rules [review] committee has not made the section applicable to the adoption of this rule. 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; rules set or adjust fees under the authority of RCW 19.02.075 or that set or adjust fees or rates pursuant to legislative standards, including fees set or adjusted under the authority of RCW 19.80.045; and rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit. Is exempt under RCW 42.56.070, 42.56.120.
Explanation of exemptions: To the extent there are costs assessed by this agency for records provided in response to public records requests by small businesses, the authorized costs are set out in statute and apply to all requesters. RCW 42.56.070, 42.56.120. October 26, 2017 Bob Ferguson Attorney General
NEW SECTION
WAC 44-06-092 Copying fees—Payments.
(1) The following copy fees and payment procedures apply to requests to the office under chapter 42.56 RCW and received on or after July 23, 2017.
(2) Pursuant to RCW 42.56.120 (2)(b), the office is not calculating all actual costs for copying records because to do so would be unduly burdensome for the following reasons: (i) The office does not have the resources to conduct a study to determine all its actual copying costs; (ii) to conduct such a study would interfere with other essential agency functions; and, (iii) through the 2017 legislative process, the public and requesters have commented on and been informed of authorized fees and costs, including for electronic records, provided in RCW 42.56.120 (2)(b) and (c), (3) and (4).
(3) The office will charge for copies of records pursuant to the default fees in RCW 42.56.120 (2)(b) and (c). The office will charge for customized services pursuant to 42.56.120(3). Under RCW 42.56.130, the office may charge other copy fees authorized by statutes outside of chapter 42.56 RCW. The office may enter into an alternative fee agreement with a requester under RCW 42.56.120(4). The charges for copying methods used by the office are summarized in the fee schedule available on the office's website at www.atg.wa.gov.
(4) Requesters are required to pay for copies in advance of receiving records. Fee waivers are an exception and are available for some small requests under the following conditions.
(a) It is within the discretion of the public records officer to waive copying fees when: (i) all of the records responsive to an entire request are paper copies only and are twenty-five or fewer pages; or (ii) all of the records responsive to an entire request are electronic and can be provided in a single email with attachments of a size totaling no more than the equivalent of 100 printed pages. If that email for any reason is not deliverable, records will be provided through another means of delivery, and the requester will be charged in accordance with this rule.
(b) Fee waivers are not applicable to records provided in installments.
(5) The public records officer may require an advance deposit of ten percent of the estimated fees when the copying fees for an installment or an entire request, or customized service charge, exceeds twenty-five dollars.
(6) All required fees must be paid in advance of release of the copies or an installment of copies, or in advance of when a deposit is required. The office will notify the requester of when payment is due.
(7) Payment should be made by check or money order to the attorney general's office. The office prefers not to receive cash. For cash payments, it is within the public records officer's discretion to determine the denomination of bills and coins that will be accepted.
(8) The office will close a request when a requester fails by the payment date to pay in the manner prescribed for records, an installment of records, or a required deposit.
REPEALER
The following section of the Washington Administrative Code is repealed:
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