BILL REQ. #:  Z-0053.4 

Prefiled 12/28/10. Read first time 01/10/11.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to creating the office of open records; amending RCW 34.05.030; adding new sections to chapter 42.56 RCW; and providing an effective date.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 42.56 RCW to read as follows:
     (1) There is established an independent office of open records within the office of administrative hearings. The office must:
     (a) Provide impartial administrative reviews of appeals by persons or agencies entitled to relief under this chapter;
     (b) Provide information relating to the implementation and enforcement of this chapter;
     (c) Adopt rules pursuant to the administrative procedure act, chapter 34.05 RCW, to provide clear guidelines for an appeal process before the office of public records from decisions of agencies subject to this chapter. The provisions of RCW 34.05.410 through 34.05.598 do not apply to the office of public records for this appeal process; and
     (d) Annually report on its activities and findings to the governor and the legislature and recommend legislation, as the office deems appropriate.
     (2) An administrative law judge reviewing appeals under this section must comply with the procedures under section 2 of this act.
     (3) The office of open records shall be supervised by the chief administrative law judge.

NEW SECTION.  Sec. 2   A new section is added to chapter 42.56 RCW to read as follows:
     (1) This section applies with regard to an agency that has voluntarily entered into an agreement with the office of administrative hearings to use the process in this section. Agreement between an agency and the office of administrative hearings shall be on a fiscal year basis unless otherwise agreed to by the parties.
     (2)(a) Subject to the requirements of subsection (1) of this section, a person entitled to seek relief under RCW 42.56.550 may file a written appeal with the office within thirty days of the date of the agency's claim of exemption or the last production of a record on a partial or installment basis. At any time before the production or denial of records, a person entitled to seek relief under RCW 42.56.550 may file an appeal challenging the reasonable estimate of the time required to respond to the request pursuant to RCW 42.56.520.
     (b) Any person filing an appeal or intervening in an appeal must pay the office a reasonable filing fee, established by rule. The fee must be waived by order of an administrative law judge upon a showing that the person filing the appeal is indigent or if the office declines to accept the appeal.
     (3) The office of open records may decline to hear an appeal.
     (4)(a) If the appeal is accepted by the office of public records, the administrative law judge may confer with legal counsel and other employees of the office who do not otherwise participate in the case.
     (b)(i) The administrative law judge may grant a timely request to intervene in an appeal under this section if:
     (A) A person or agency seeking to intervene has standing to seek relief in superior court under RCW 42.56.540 or 42.56.550;
     (B) No hearing has been held;
     (C) The administrative law judge has not yet issued final order; and
     (D) The party seeking to intervene in an appeal offers information that will assist with resolving the appeal without undue delay.
     (ii) Copies of the written request to intervene in an appeal shall be provided to all parties in the appeal by the person or agency submitting the request. A decision by the administrative law judge to grant or deny a request to intervene is not subject to judicial review.
     (c) Unless a hearing is set, the administrative law judge shall issue a final order that must be mailed to the parties within thirty days of receipt of the appeal filed with the office.
     (d) The office shall adopt rules pursuant to chapter 34.05 RCW prescribing procedures for an expedited review of an appeal with the issuance of a final order in fewer than thirty days for circumstances including but not limited to: Whether there is a clear legal issue presented on appeal, undisputed facts, and an urgent need for resolution that will be frustrated by delay. A decision by the office to grant or deny an expedited review is not subject to judicial review.
     (e) At any time before the office issues a final order, any person or agency may submit a written request for a hearing. The administrative law judge may order a hearing if further information will be beneficial according to criteria established by rule adopted by the office pursuant to chapter 34.05 RCW. The order granting or denying a hearing is not subject to judicial review. The administrative law judge may extend the deadline for a final order beyond thirty days in order to hold a hearing. The administrative law judge must issue a final order within thirty days after the hearing.
     (f) Upon setting a hearing, the administrative law judge shall set a schedule for the submission of documents, testimony, or other evidence in support of any party's position. The administrative law judge may limit the nature and extent of admissible evidence for the sufficiency of issuing a final order. The administrative law judge may issue subpoenas and may enter protective orders. The administrative law judge shall decide whether to permit the taking of depositions, the requesting of admissions, and all other procedures authorized by rules 26 through 36 of the superior court civil rules. The administrative law judge shall condition use of discovery on a showing of necessity and unavailability by other means. The administrative law judge shall consider: (i) Whether all parties are represented by counsel; (ii) whether undue expense or delay in bringing the case to hearing will result; (iii) whether the discovery will promote the orderly and prompt conduct of the proceeding; and (iv) whether the interests of justice will be promoted. Discovery orders, protective orders, and subpoenas may be enforced by the office in a superior court in the county where the hearing is conducted.
     (g) The administrative law judge may accept or order the submission of any records, or portions thereof, for in camera review. Records reviewed in camera for appeals before the office are exempt from disclosure under this chapter.
     (h) Before issuing a final order, the office must require the parties to an appeal to meet and confer for the purpose of simplification or settlement of issues by agreement. The office may order mediation where all parties agree to mediation for any issue. The administrative law judge may stay appeals and time limits required under this section pursuant to a mediation order for the duration of the mediation.
     (i) The office may not award any costs, attorneys' fees, or penalties.
     (j) The chief administrative law judge may designate certain final orders as precedents according to criteria established by rule adopted pursuant to chapter 34.05 RCW. All other final orders are without precedent for determining other cases involving similar facts or issues. All final orders shall be made immediately and publicly available on the web site of the office.
     (5)(a) Appeals to the office of open records are not the exclusive remedy for enforcement of the provisions of this chapter. Any person may initiate an action in court under RCW 42.56.540 or 42.56.550. However, if an appeal is filed first with the office, the office retains primary jurisdiction.
     (b) Subject to judicial review, the final orders of the administrative law judges are binding on all parties to an appeal before the office, and are enforceable in a superior court.
     (c) Judicial review of a final order of the office must be filed with a superior court within thirty days after the entry of the final order, and venue shall be determined consistent with the provisions of RCW 42.56.550. Judicial review of a final order of the office by a superior court shall be de novo.
     (d) The office may not be named as a defendant for any judicial review of a final order to a superior court.
     (e) A superior court may award a person who prevails on judicial review against an agency all costs, including reasonable attorneys' fees, and penalties in accordance with RCW 42.56.550(4). However, a superior court may not award any costs or attorneys' fees incurred or accrued for appeals before the office.
     (6) The office of administrative hearings may charge participating agencies fees for services rendered.

Sec. 3   RCW 34.05.030 and 2006 c 300 s 4 are each amended to read as follows:
     (1) This chapter shall not apply to:
     (a) The state militia, or
     (b) The board of clemency and pardons, or
     (c) The department of corrections or the indeterminate sentencing review board with respect to persons who are in their custody or are subject to the jurisdiction of those agencies.
     (2) The provisions of RCW 34.05.410 through 34.05.598 shall not apply:
     (a) To adjudicative proceedings of the board of industrial insurance appeals except as provided in RCW 7.68.110 and 51.48.131;
     (b) Except for actions pursuant to chapter 46.29 RCW, to the denial, suspension, or revocation of a driver's license by the department of licensing;
     (c) To the department of labor and industries where another statute expressly provides for review of adjudicative proceedings of a department action, order, decision, or award before the board of industrial insurance appeals;
     (d) To actions of the Washington personnel resources board or the director of personnel;
     (e) To adjustments by the department of revenue of the amount of the surcharge imposed under RCW 82.04.261; ((or))
     (f) To the extent they are inconsistent with any provisions of chapter 43.43 RCW; or
     (g) To the adjudicative proceedings of the office of open records.
     (3) Unless a party makes an election for a formal hearing pursuant to RCW 82.03.140 or 82.03.190, RCW 34.05.410 through 34.05.598 do not apply to a review hearing conducted by the board of tax appeals.
     (4) The rule-making provisions of this chapter do not apply to:
     (a) Reimbursement unit values, fee schedules, arithmetic conversion factors, and similar arithmetic factors used to determine payment rates that apply to goods and services purchased under contract for clients eligible under chapter 74.09 RCW; and
     (b) Adjustments by the department of revenue of the amount of the surcharge imposed under RCW 82.04.261.
     (5) All other agencies, whether or not formerly specifically excluded from the provisions of all or any part of the administrative procedure act, shall be subject to the entire act.

NEW SECTION.  Sec. 4   This act takes effect January 1, 2012.