H-0819.2                  _______________________________________________

                                                      HOUSE BILL 1650

                              _______________________________________________

State of Washington                              53rd Legislature                             1993 Regular Session

By Representatives Romero, Campbell, Rayburn, Chappell, Ludwig, Jacobsen, Veloria and Pruitt

Read first time 02/05/93.  Referred to Committee on State Government.

Providing administrative review of agency decisions concerning access to public records.

          AN ACT Relating to public records; and amending RCW 42.17.360, 42.17.325, and 42.17.340.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

        Sec. 1.  RCW 42.17.360 and 1973 c 1 s 36 are each amended to read as follows:

          The commission shall:

          (1) Develop and provide forms for the reports and statements required to be made under this chapter((:));

          (2) Prepare and publish a manual setting forth recommended uniform methods of bookkeeping and reporting for use by persons required to make reports and statements under this chapter;

          (3) Compile and maintain a current list of all filed reports and statements;

          (4) Investigate whether properly completed statements and reports have been filed within the times required by this chapter;

          (5) Adopt rules governing the public's access to public records held by state agencies including, but not limited to, rules regarding reasonable charges by state agencies for copying records under RCW 42.17.300;

(6) Upon complaint or upon its own motion, investigate and report apparent violations of this chapter to the appropriate law enforcement authorities;

          (((6))) (7) Prepare and publish an annual report to the governor as to the effectiveness of this chapter and its enforcement by appropriate law enforcement authorities; and

          (((7))) (8) Enforce this chapter according to the powers granted it by law.

        Sec. 2.  RCW 42.17.325 and 1992 c 139 s 10 are each amended to read as follows:

(1) Whenever a state agency concludes that a public record is exempt from disclosure and denies a person opportunity to inspect or copy a public record for that reason, the person may request the ((attorney general)) public disclosure commission to review the matter.  ((The attorney general shall provide the person with his or her written opinion on whether the record is exempt.

          Nothing in this section shall be deemed to establish an attorney-client relationship between the attorney general and a person making a request under this section.))

Whenever a state agency other than the commission has provided a person requesting a public record with an estimate of the time that the agency requires to respond to the request and the person believes that the agency has not made a reasonable estimate of that time, the person may request the commission to review the estimate.

(2) The commission shall promptly conduct a review of the issue or issues involved in each request filed with it under this section.  The commission's review of such issues shall be de novo and its decision regarding public access to a record or the length of time an agency has for considering a request for such access is binding on the state agency involved.  However, the state agency may appeal a decision of the commission to the superior court in the county in which the record is maintained.  The court's review of such a decision shall be de novo.

        Sec. 3.  RCW 42.17.340 and 1992 c 139 s 8 are each amended to read as follows:

          (1)(a) Upon the motion of any person having been denied an opportunity to inspect or copy a public record by ((an)) a local agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records.  The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.

          (((2))) (b) Upon the motion of any person who believes that ((an)) a local agency has not made a reasonable estimate of the time that the agency requires to respond to a public record request, the superior court in the county in which a record is maintained may require the responsible agency to show that the estimate it provided is reasonable.  The burden of proof shall be on the agency to show that the estimate it provided is reasonable.

(2)(a) If a person has been denied an opportunity to inspect or copy a public record by a state agency other than the commission, the person has requested the commission to review the agency's action, and the commission has upheld the agency's action, the person may file an appeal regarding the agency's action in the superior court in the county in which the record is maintained.  If the commission has denied a person an opportunity to inspect or copy a record maintained by the commission, the person may file an appeal regarding the commission's action in the superior court of Thurston county.  The court may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records.  The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.

(b) If a person believes that a state agency other than the commission has not made a reasonable estimate of the time that the agency requires to respond to a public record request, the person has requested the commission to review the estimate, and the commission has concurred with the agency's estimate or has provided an estimate which the person believes is not reasonable, the person may file an appeal regarding the estimate with the superior court in the county in which the record is maintained.  If a person believes that the commission has not made a reasonable estimate of the time that the commission requires to respond to a request to inspect or copy a record maintained by the commission, the person may file an appeal regarding the estimate with the superior court of Thurston county.  The court may require the responsible agency to show that the estimate it provided is reasonable.  The burden of proof shall be on the agency to show that the estimate it provided is reasonable.

(c) As used in (a) and (b) of this subsection, the "responsible agency" is the state agency which originally made the decision to deny access to the record or originally made the estimate regarding the time the agency requires to respond to a request for a public record.

          (3) Judicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo.  Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others.  Courts may examine any record in camera in any proceeding brought under this section.  The court may conduct a hearing based solely on affidavits.

          (4) Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action.  In addition, it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed one hundred dollars for each day that he was denied the right to inspect or copy said public record.

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