Subject of Possible Rule Making: Model rules for providing electronic records under the Public Records Act.

     Statutes Authorizing the Agency to Adopt Rules on this Subject: Section 4, chapter 483, Laws of 2005.

     Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The legislature required the attorney general to adopt the Public Records Act model rules on a number of topics, including special issues involving requests for, and disclosure of, electronic records. RCW 42.17.348(2). On November 23, 2005, the attorney general proposed a set of model rules on various topics including electronic records. The section on electronic records, proposed WAC 44-14-050, proposed the following:

•	The process for requesting electronic records is the same as the process for requesting paper records.
•	An agency is not required to create a public record, create a data base, or reformat or alter an existing data base in a manner not maintained by the agency for its business purposes, nor is an agency required to write code to respond to a public records request.
•	An agency may choose to provide an electronic record in a printed, instead of electronic, format.
•	An agency may choose to reformat or customize existing electronic records to respond to requests for information. (The proposed model rule set forth a number of criteria to guide the agency in determining whether to provide such customized access.)
•	The agency may charge the requestor for the costs of customized access.

     While some of the comments received were in favor of the proposed model rule on electronic records, the majority of public comments criticized the approach and indicated the need for an alternate approach to responding to requests for electronic records.

     Therefore, on January 31, 2006, the attorney general adopted the proposed model rules on other topics but withdrew the electronic records portion from the proposed rule. A previous CR-101 for the model rules on electronic records was submitted shortly after January 31, 2006, but expired in June 2006. This second CR-101 reinitiates a separate rule-making proceeding to adopt Public Records Act model rules on electronic records. The proposed rule would add new sections in WAC 44-10-050 (the section reserved for electronic records) and would amend other portions of the model rules affecting electronic records (such as WAC 44-14-07003 (copying costs of electronic records) and WAC 44-14-03001(1) (defining "public record")). We are reinitiating a separate rule-making proceeding to allow the public to submit comments on possible alternate approaches with the intent to develop a model rule on electronic records that will describe best practices on public records processing to aid records requestors and agencies.

     The attorney general solicits comments on a proposal that would have the following elements:

•	An electronic data base is a "public record" under the Public Records Act.
•	The agency will provide records in an electronic data base if so requested.
•	If the information requested from the data base has not previously been retrieved by the agency or is not of the type of information typically retrieved by the agency in its normal course of business, the agency nevertheless will retrieve the information and provide it to the requestor if it is possible to do so without the need of outside programming assistance.
•	The costs for electronic copies or retrieval of information that may be charged to the requestor.
•	Other issues affecting the provision of electronic records.

     The attorney general encourages other proposals as well.

     Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: None.

     Process for Developing New Rule: Legislative mandate.

     Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication. Any person wishing to submit written comments should send them to Greg Overstreet, Special Assistant Attorney General for Government Accountability, P.O. Box 40100, Olympia, WA 98504-0100, (360) 586-4802 (voice), (360) 664-0228 (fax), grego@atg.wa.gov. The attorney general also will hold one or more informal workshops at which interested persons may meet and discuss possible approaches to public disclosure issues involving electronic records. Any person interested in participating in such workshops should contact Greg Overstreet. Information on the electronic records model rules will be available as it is developed at www.atg.wa.gov/records/modelrules.

June 12, 2006

Rob McKenna

Attorney General

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