WSR 07-04-039

PERMANENT RULES

WASHINGTON STATE PATROL


[ Filed January 30, 2007, 10:29 a.m. , effective March 2, 2007 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: To provide information to records requestors and state and local agencies about "best practices" for complying with the Public Records Act, RCW 42.56.040 through 42.26.570 [42.56.570]. The model rules will establish a culture of compliance among agencies and culture of cooperation among requestors by standardizing best practices throughout the state. The WSP WAC rules are outdated and in an effort to comply with the wishes of the 2005 legislature we wish to modify them to more closely resemble the attorney general model rules, and update agency rules regarding disclosure of public records.

Citation of Existing Rules Affected by this Order: Repealing WAC 446-10-020, 446-10-060, 446-10-070, 446-10-120, 446-10-130, 446-10-140 and 446-10-150; and amending WAC 446-10-010, 446-10-030, 446-10-050, 446-10-080, 446-10-090, 446-10-100, and 446-10-110.

Statutory Authority for Adoption: RCW 42.56.040 through 46.56.570 [42.56.570].

Adopted under notice filed as WSR 06-24-046 on December 1, 2006.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 7, Repealed 7.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: January 29, 2007.

John R. Batiste

Chief

OTS-9316.1


AMENDATORY SECTION(Amending Order 79-2, filed 3/23/79)

WAC 446-10-010   Authority and purpose.   ((The purpose of this chapter shall be to ensure compliance by the Washington state patrol with the provisions of chapter 1, Laws of 1973 (Initiative 276) [chapter 42.17 RCW], Disclosure -- Campaign finances -- Lobbying -- Records; and in particular with subsections 25-32 of that act, dealing with public records.)) (1) RCW 42.56.070(1) requires each agency to make available for inspection and copying nonexempt "public records" in accordance with published rules. The act defines "public record" to include any "writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained" by the agency. RCW 42.56.070(2) requires each agency to set forth "for informational purposes" every law, in addition to the Public Records Act (the act), that exempts or prohibits the disclosure of public records held by that agency.

(2) The purpose of these rules is to establish the procedures the Washington state patrol shall follow in order to provide full access to public records. These rules provide information to persons wishing to request access to public records of the Washington state patrol and establish processes for both requestors and Washington state patrol staff that are designed to best assist members of the public in obtaining such access.

(3) The purpose of the act is to provide the public full access to information concerning the conduct of government, mindful of individuals' privacy rights and the desirability of the efficient administration of government. In carrying out its responsibilities under the act, the Washington state patrol shall be guided by the provisions of the act describing its purposes and interpretation.

[Statutory Authority: RCW 42.17.250. 79-04-037 (Order 79-2), 446-10-010, filed 3/23/79.]


AMENDATORY SECTION(Amending WSR 95-24-041, filed 11/30/95, effective 12/31/95)

WAC 446-10-030   Description of central and field organizations of the Washington state patrol.   (1) The Washington state patrol is a law enforcement agency ((and service)). The ((administrative offices of the department and its staff are located)) Washington state patrol is headquartered in the General Administration Building, 210 - 11th Avenue S.W., Olympia, Washington 98504. The department has eight district headquarters with working addresses as follows:

District I - 2502 112th Street East, Tacoma 98445-5104
District II - 2803 - 156th Avenue S. E., Bellevue 98007
District III - 2715 Rudkin Road, Union Gap 98903
District IV - West 6403 Rowand Road, Spokane 99204-5300
District V - ((605 East Evergreen Boulevard, Vancouver 98661-3812))

11018 N.E. 51st Circle, Vancouver 98682-3812

District VI - 2822 Euclid Avenue, Wenatchee 98801-5916
District VII - 2700 116th Street N.E., Marysville 98271-9425
District VIII - 4811 Werner Road, Bremerton 98312-3333

(2) Any person wishing to request access to public records of the Washington state patrol, or seeking assistance in making such a request, shall contact the public records officer of the Washington state patrol:


Public Records Officer

Washington State Patrol

P.O. Box 42631

Olympia, WA 98504

Phone: 360-753-5467

Fax: 360-753-0234

E-mail: pubrecs@wsp.wa.gov


Information is also available at the Washington state patrol's web site at http://www.wsp.wa.gov/.

(3) The public records officer shall oversee compliance with the act, but another Washington state patrol staff member may process the request. Therefore, these rules shall refer to the public records officer "or designee." The public records officer or designee and the Washington state patrol shall provide the "fullest assistance" to requestors; create and maintain for use by the public and Washington state patrol officials an index to public records of the Washington state patrol; ensure that public records are protected from damage or disorganization; and prevent fulfilling public records requests from causing excessive interference with essential functions of the Washington state patrol.

[Statutory Authority: RCW 42.17.250. 95-24-041, 446-10-030, filed 11/30/95, effective 12/31/95; 79-04-037 (Order 79-2), 446-10-030, filed 3/23/79.]


AMENDATORY SECTION(Amending Order 79-2, filed 3/23/79)

WAC 446-10-050   Availability of public records ((available)).   ((All public records of the department, as defined in WAC 446-10-020(1), are deemed to be available for public inspection and copying pursuant to these rules, except as otherwise provided by section 31, chapter 1, Laws of 1973, and WAC 446-10-100.)) (1) Hours for inspection of records. Public records are available for inspection and copying during normal business hours of the Washington state patrol; 8:00 a.m. to noon, and 1:00 p.m. to 4:00 p.m., Monday through Friday, excluding legal holidays. Records must be inspected at the offices of the Washington state patrol.

(2) Records index. An index of public records is available for use by members of the public. The index includes a list of current manuals of the Washington state patrol, a current list of laws, other than those listed in chapter 42.56 RCW, that exempts or prohibits disclosure of specific information or records, and current Washington Administrative Code agency rules. The index may be accessed on-line at www.wsp.wa.gov/, or at any public Washington state patrol office.

(3) Organization of records. The Washington state patrol shall maintain its records in a reasonably organized manner. The Washington state patrol shall take reasonable actions to protect records from damage and disorganization. A requestor shall not take Washington state patrol records from Washington state patrol offices without the permission of the public records officer or designee. Records may be available on the Washington state patrol web site at www.wsp.wa.gov/. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

(4) Making a request for public records.

(a) Any person wishing to inspect or obtain copies of public records of the Washington state patrol shall make the request in writing using the Washington state patrol request form, or by letter, fax, or e-mail addressed to the public records officer. Each request should include the following information:

Name of requestor;

Address of requestor;

Other contact information, including telephone number and/or any e-mail address; and

Identification of the public records adequate for the public records officer or designee to locate the records.

(b) If the requestor wishes to inspect rather than obtain copies of records, they shall indicate this preference in their request. Pursuant to WAC 446-10-090, standard photocopies shall be provided at fifteen cents per page, plus postage.

(c) A form is available for use by requestors on-line at www.wsp.wa.gov/.

[Statutory Authority: RCW 42.17.250. 79-04-037 (Order 79-2), 446-10-050, filed 3/23/79.]


AMENDATORY SECTION(Amending Order 79-2, filed 3/23/79)

WAC 446-10-080   Processing of requests for public records.   ((In accordance with requirements of chapter 1, Laws of 1973 [chapter 42.17 RCW], that agencies prevent unreasonable invasions of privacy, protect public records from damage or disorganization, and prevent excessive interference with essential functions of the agency, public records may be inspected or copied or copies of such records may be obtained by members of the public upon compliance with the following procedures:

(1) If, after access to the departmental index, a particular record is desired and that record is not an item routinely available as a matter of public service, a request shall be made in writing upon a form prescribed by the department which shall be available at its administrative office. The form shall be presented to the public records officer or to any member of the department's staff if the public records officer is not available at the administrative office of the department during customary office hours. The request shall include the following information:

(a) The name and address of the person requesting the record;

(b) The time of day and calendar date on which the request was made;

(c) The nature of the request;

(d) If the matter requested is referenced within the current index maintained by the records officer, a reference to the requested record as it is described in such current index;

(e) If the requested matter is not identifiable by reference to the department's current index, an appropriate description of the record requested.

(2) In all cases in which a member of the public is making a request, it shall be the obligation of the public records officer or staff member to whom the request is made to assist the member of the public in an appropriately identifying the public record requested.)) (1) Providing "fullest assistance." The Washington state patrol is charged by statute with adopting rules which provide for how it shall "provide full access to public records," "protect records from damage or disorganization," "prevent excessive interference with other essential functions of the agency," provide "fullest assistance" to requestors, and provide the "most timely possible action" on public records requests. The public records officer or designee shall process requests in the order they are received and allowing for the most requests to be processed in the most efficient manner.

(2) Acknowledging receipt of request. Within five business days of receipt of the request, the public records officer or designee shall do one or more of the following:

(a) Make the records available for inspection;

(b) Provide the requested records (or provide a bill for the records if applicable) to the requestor;

(c) Provide a reasonable estimate of when records shall be available; or

(d) Deny the request, and providing a statutory explanation as to the reason for the denial.

(3) Consequences of failure to respond. If the Washington state patrol does not respond in writing within five business days of receipt of the request for disclosure, the requestor should consider contacting the public records officer to determine the reason for the failure to respond.

(4) Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer or designee may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. This notice is given so affected persons may seek an order from a court to prevent or limit the disclosure. The notice to the affected persons may include a copy of the request.

(5) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the Washington state patrol believes that a record is exempt from disclosure and should be withheld, the public records officer or designee shall state the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, but the remainder is not exempt, the public records officer or designee shall redact the exempt portions, provide the nonexempt portions, and indicate to the requestor why portions of the record are being redacted.

(6) Inspection of records.

(a) Consistent with other demands, the Washington state patrol shall provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter any document without approval from the public records officer or designee. The requestor shall indicate which documents he or she wishes the agency to copy.

(b) The requestor must claim or review the assembled records within thirty days of the Washington state patrol's notification to him or her that the records are available for inspection or copying. The agency shall notify the requestor in writing of this requirement and inform the requestor that he or she is to contact the agency to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the thirty-day period or make other arrangements, the Washington state patrol may close the request and refile the assembled records. Other public records requests can be processed ahead of a subsequent request by the same person for the same or almost identical records, which may be processed as a new request.

(7) Providing copies of records. After inspection is complete or in lieu of inspection, the public records officer or designee shall make the requested copies or arrange for copying and provide them to the requestor.

(8) Providing records in installments. When the request is for a large number of records, the public records officer or designee may provide access for inspection and copying in installments, if he or she reasonably determines that it would be more practical to provide the records in that way. If, within thirty days, the requestor fails to inspect one or more of the installments, the public records officer or designee may stop searching for the remaining records and close the request.

(9) Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the public records officer or designee shall indicate that the Washington state patrol has completed the request and provided all available (nonexempt) records.

(10) Closing withdrawn or abandoned request. When the requestor either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay the deposit or final payment for the requested copies, the public records officer shall close the request and indicate to the requestor that the Washington state patrol has closed the request.

(11) Later discovered documents. If, after the Washington state patrol has informed the requestor that it has provided all available records, the Washington state patrol becomes aware of additional responsive documents existing at the time of the request, it shall promptly inform the requestor of the additional documents and provide them on an expedited basis.

[Statutory Authority: RCW 42.17.250. 79-04-037 (Order 79-2), 446-10-080, filed 3/23/79.]


AMENDATORY SECTION(Amending WSR 97-01-018, filed 12/9/96, effective 1/9/97)

WAC 446-10-090   ((Charge)) Costs for providing copies of public records.   ((No fee shall be charged for the inspection of public records. The department shall charge a fee of fifteen cents per page of copy for providing copies of written public records and for use of the department copy and duplicating equipment, and actual costs for postage, mailing and shipping services. The department may charge the actual cost for providing copies of public records, including duplications of photographs, audio tapes, video tapes, diagrams and/or drawings of collision scenes. These charges are the amounts necessary to reimburse the department for its actual costs incident to such copying and mailing.

Payment for the copying of public records may be required by the department prior to the release of the documents to the requester. Only company checks, money orders, or personal checks will be accepted as payment. No cash shall be allowed.)) (1) Costs for paper copies. There is no fee charged for inspecting public records. A requestor may obtain standard black and white photocopies for fifteen cents per page. Before beginning to make copies, the public records officer or designee may estimate costs of copying the records, and may require a deposit of up to ten percent of all the records selected by the requestor. The public records officer or designee may also require the payment of the remainder of the copying costs before providing all the records, or the payment of the costs of copying an installment before providing that installment. The Washington state patrol shall not charge sales tax when it makes copies of public records.

(2) Costs for electronic records. The cost of electronic copies of records shall be the actual cost of the CD, DVD, audio or video tape, or disc.

(3) Costs of mailing. The Washington state patrol may also charge actual costs of mailing, including the cost of the shipping container.

(4) Payment. Payment may be made by check or money order only, payable to the Washington state patrol.

[Statutory Authority: RCW 42.17.250 and 42.17.300. 97-01-018, 446-10-090, filed 12/9/96, effective 1/9/97. Statutory Authority: RCW 42.17.250. 90-10-097, 446-10-090, filed 5/2/90, effective 6/2/90; 79-04-037 (Order 79-2), 446-10-090, filed 3/23/79.]


AMENDATORY SECTION(Amending Order 79-2, filed 3/23/79)

WAC 446-10-100   Exemptions.   (((1) The department reserves the right to determine that a public record requested in accordance with the procedures outlined in WAC 446-10-080 is exempt under the provisions of section 31, chapter 1, Laws of 1973 [chapter 42.17 RCW].

(2) In addition, pursuant to section 26, chapter 1, Laws of 1973 [chapter 42.17 RCW], the department reserves the right to delete identifying details when it makes available or publishes any public record, in any cases when there is reason to believe that disclosures of such details would be an invasion of personal privacy protected by chapter 1, Laws of 1973 [chapter 42.17 RCW]. The public records officer will fully justify such deletion in writing.

(3) All denials of requests for public records must be accompanied by a written statement specifying the reason for the denial, including a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld.)) (1) The Public Records Act, chapter 42.56 RCW, provides that a number of types of documents are exempt from public inspection and copying. In addition, documents are exempt from disclosure if any "other statute" exempts or prohibits disclosure. A list of statutes containing exemptions, outside the Public Records Act, that restrict the availability of some documents held by Washington state patrol for inspection and copying can be found in the Washington state patrol public records index which is available on-line at www.wsp.wa.gov/ or at any Washington state patrol public office.

(2) The Washington state patrol is prohibited by statute from disclosing lists of individuals for commercial purposes.

[Statutory Authority: RCW 42.17.250. 79-04-037 (Order 79-2), 446-10-100, filed 3/23/79.]


AMENDATORY SECTION(Amending Order 79-2, filed 3/23/79)

WAC 446-10-110   Review of denials of public records ((requests)).   (1) Petition for internal administrative review of denial of access. Any person who objects to the initial denial or partial denial of a request for a public record may petition for prompt review of such decision by tendering a written request for review. The ((written request)) petition shall ((specifically refer to)) include a copy of, or reasonably identify, the written statement by the public records officer or ((other staff member which constituted or accompanied the denial)) designee denying the request.

(2) ((Immediately after receiving a written request for review of a decision denying a public record, the public records officer or other staff member denying the request shall refer it to the chief of the department. The chief shall immediately consider the matter and either affirm or reverse such denial or call a special meeting of the department as soon as legally possible to review the denial. In any case, the request shall be returned with a final decision within two business days following the original denial.)) Consideration of petition for review. The public records officer shall promptly provide the petition and any other relevant information to the chief or designee. The chief or designee shall immediately consider the petition and either affirm or reverse the denial within two business days following the Washington state patrol's receipt of the petition, or within such other time as the Washington state patrol and the requestor mutually agree upon.

(3) ((Administrative remedies shall not be considered exhausted until the department has returned the petition with a decision or until the close of the second business day following the denial of inspection, whichever occurs first.)) Review by the attorney general's office. Pursuant to RCW 42.56.530, if the Washington state patrol denies a requestor access to public records because it claims the record is exempt in whole or in part from disclosure, the requestor may request the attorney general's office review the matter. The attorney general has adopted rules on such requests in WAC 44-06-160.

(4) Judicial review. Any person may obtain court review of denials of public records requests pursuant to RCW 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative approval.

[Statutory Authority: RCW 42.17.250. 79-04-037 (Order 79-2), 446-10-110, filed 3/23/79.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 446-10-020 Definitions.
WAC 446-10-060 Public records officer.
WAC 446-10-070 Office hours.
WAC 446-10-120 Protection of public records.
WAC 446-10-130 Records index.
WAC 446-10-140 Request for information.
WAC 446-10-150 Adoption of form.

Washington State Code Reviser's Office