BILL REQ. #:  H-3468.1 

Read first time 01/11/12.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to clarifying restrictions on the use of the public records act for the purpose of obtaining records for commercial or profit-making purposes; amending RCW 42.56.030 and 42.56.070; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that the public records act is intended to allow the citizens of Washington full access to the records of the governmental agencies that serve them. The fundamental purpose of such access is to ensure that the activities and processes of state government are conducted in an open and transparent manner and that citizens can obtain the information necessary for meaningful participation in the democratic process. However, the legislature has also recognized that in order to safeguard against records requests that are unduly burdensome, or where the records are sought for commercial or other purposes unrelated to the goals of the act, reasonable restrictions may be placed on the number and types of records that may be obtained.
     The legislature also finds that there are an increasing number of records requests whose sole purpose is to seek information for commercial or other profit-making purposes and that do not serve to promote the goals of transparency and openness in the operation of our state and local governments. Specifically, the legislature finds that some commercial entities and individuals have been misusing the act by making extensive and burdensome records requests in order to obtain data that is used solely for competitive advantage or for later resale. Such "data mining" is wholly unrelated to the purposes of the public records act and, in fact, serves to undermine the act by overburdening affected public agencies and thus impede the ability of such agencies to respond to legitimate requests for public records.
     The intent of this act is to strengthen and clarify existing restrictions on the use of public records requests for commercial and profit-making purposes, so as to reduce the misuse of the public records act and ensure that the act can continue to be focused on the goal of promoting governmental transparency and openness.

Sec. 2   RCW 42.56.030 and 2007 c 197 s 2 are each amended to read as follows:
     The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.
     The provisions of this chapter are not intended to facilitate the gathering of information for purely commercial or profit-making purposes unrelated to the promotion of transparency and openness in the operation of state and local governments.

Sec. 3   RCW 42.56.070 and 2005 c 274 s 284 are each amended to read as follows:
     (1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection (((6))) (9) of this section, this chapter, or other statute which exempts or prohibits disclosure of specific information or records. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by this chapter, an agency shall delete identifying details in a manner consistent with this chapter when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing.
     (2) For informational purposes, each agency shall publish and maintain a current list containing every law, other than those listed in this chapter, that the agency believes exempts or prohibits disclosure of specific information or records of the agency. An agency's failure to list an exemption shall not affect the efficacy of any exemption.
     (3) Each local agency shall maintain and make available for public inspection and copying a current index providing identifying information as to the following records issued, adopted, or promulgated after January 1, 1973:
     (a) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
     (b) Those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the agency;
     (c) Administrative staff manuals and instructions to staff that affect a member of the public;
     (d) Planning policies and goals, and interim and final planning decisions;
     (e) Factual staff reports and studies, factual consultant's reports and studies, scientific reports and studies, and any other factual information derived from tests, studies, reports, or surveys, whether conducted by public employees or others; and
     (f) Correspondence, and materials referred to therein, by and with the agency relating to any regulatory, supervisory, or enforcement responsibilities of the agency, whereby the agency determines, or opines upon, or is asked to determine or opine upon, the rights of the state, the public, a subdivision of state government, or of any private party.
     (4) A local agency need not maintain such an index, if to do so would be unduly burdensome, but it shall in that event:
     (a) Issue and publish a formal order specifying the reasons why and the extent to which compliance would unduly burden or interfere with agency operations; and
     (b) Make available for public inspection and copying all indexes maintained for agency use.
     (5) Each state agency shall, by rule, establish and implement a system of indexing for the identification and location of the following records:
     (a) All records issued before July 1, 1990, for which the agency has maintained an index;
     (b) Final orders entered after June 30, 1990, that are issued in adjudicative proceedings as defined in RCW 34.05.010 and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;
     (c) Declaratory orders entered after June 30, 1990, that are issued pursuant to RCW 34.05.240 and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;
     (d) Interpretive statements as defined in RCW 34.05.010 that were entered after June 30, 1990; and
     (e) Policy statements as defined in RCW 34.05.010 that were entered after June 30, 1990.
     Rules establishing systems of indexing shall include, but not be limited to, requirements for the form and content of the index, its location and availability to the public, and the schedule for revising or updating the index. State agencies that have maintained indexes for records issued before July 1, 1990, shall continue to make such indexes available for public inspection and copying. Information in such indexes may be incorporated into indexes prepared pursuant to this subsection. State agencies may satisfy the requirements of this subsection by making available to the public indexes prepared by other parties but actually used by the agency in its operations. State agencies shall make indexes available for public inspection and copying. State agencies may charge a fee to cover the actual costs of providing individual mailed copies of indexes.
     (6) A public record may be relied on, used, or cited as precedent by an agency against a party other than an agency and it may be invoked by the agency for any other purpose only if:
     (a) It has been indexed in an index available to the public; or
     (b) Parties affected have timely notice (actual or constructive) of the terms thereof.
     (7) Each agency shall establish, maintain, and make available for public inspection and copying a statement of the actual per page cost or other costs, if any, that it charges for providing photocopies of public records and a statement of the factors and manner used to determine the actual per page cost or other costs, if any.
     (a) In determining the actual per page cost for providing photocopies of public records, an agency may include all costs directly incident to copying such public records including the actual cost of the paper and the per page cost for use of agency copying equipment. In determining other actual costs for providing photocopies of public records, an agency may include all costs directly incident to shipping such public records, including the cost of postage or delivery charges and the cost of any container or envelope used.
     (b) In determining the actual per page cost or other costs for providing copies of public records, an agency may not include staff salaries, benefits, or other general administrative or overhead charges, unless those costs are directly related to the actual cost of copying the public records. Staff time to copy and mail the requested public records may be included in an agency's costs.
     (8) An agency need not calculate the actual per page cost or other costs it charges for providing photocopies of public records if to do so would be unduly burdensome, but in that event: The agency may not charge in excess of fifteen cents per page for photocopies of public records or for the use of agency equipment to photocopy public records and the actual postage or delivery charge and the cost of any container or envelope used to mail the public records to the requestor.
     (9) This chapter shall not be construed as giving authority to any agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives to give, sell or provide access to ((lists of)) information about individuals or entities requested for commercial purposes, and agencies, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives shall not do so unless specifically authorized or directed by law: PROVIDED, HOWEVER, That lists of applicants for professional licenses and of professional licensees shall be made available to those professional associations or educational organizations recognized by their professional licensing or examination board, upon payment of a reasonable charge therefor: PROVIDED FURTHER, That such recognition may be refused only for a good cause pursuant to a hearing under the provisions of chapter 34.05 RCW, the administrative procedure act.