WSR 08-18-027

PROPOSED RULES

SECRETARY OF STATE


[ Filed August 27, 2008, 10:50 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-13-054.

Title of Rule and Other Identifying Information: Chapter 434-840 WAC, the address confidentiality program (ACP).

Hearing Location(s): Washington State Library, Conference Room 221, Point Plaza East, 6880 Capitol Boulevard, Tumwater, WA 98504-2460, on October 8, 2008, at 10:00 a.m.

Date of Intended Adoption: November 19, 2008.

Submit Written Comments to: Megan Moreno, P.O. Box 40220, Olympia, WA 98504-0220, e-mail mmoreno@secstate.wa.gov, fax (360) 586-5629, by October 10, 2008.

Assistance for Persons with Disabilities: Contact Megan Moreno by October 6, 2008, TTY (800) 422-8683.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To reflect changes made to the ACP by SHB 1421 and SSB 6339, passed by the legislature in 2008.

SHB 1421 specifies procedures for issuance of participant information and conditions under which a court order should be issued.

SSB 6339 adds "trafficking" to the list of crimes qualifying an applicant for program participation.

Additionally, protected records voter provisions have been updated and sections pertaining to voting procedures have been repealed and will be more appropriately placed with election WACs.

Reasons Supporting Proposal: Passage of SHB 1421 and SSB 6339 by the legislature during the 2008 legislative session and identification of outdated material pertaining to protected records voter provisions.

Statutory Authority for Adoption: RCW 40.24.090.

Statute Being Implemented: Chapter 434-840 WAC.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Office of the secretary of state, governmental.

Name of Agency Personnel Responsible for Drafting: Megan Moreno, 250 Legislative Building, Olympia, Washington, (360) 902-4141; Implementation and Enforcement: Missy Deinlein, 250 Legislative Building, Olympia, Washington, (360) 753-2972.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed changes in the WAC do not affect small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. There is no identifiable fiscal impact associated with the proposed changes in the WAC.

August 27, 2008

Steve Excel

Assistant Secretary of State

OTS-1852.2


AMENDATORY SECTION(Amending WSR 05-13-059, filed 6/9/05, effective 7/10/05)

WAC 434-840-005   Definitions.   For the purposes of this chapter:

(1) "Address" means any physical locations where the participant resides, works, or attends school, for which the participant is requesting confidentiality.

(2) "Address confidentiality program (ACP)" means the agency employee designated by the secretary of state with responsibility for developing and administering the program that implements the provisions of chapter 40.24 RCW.

(((2))) (3) "Agency" means an office, department, division, bureau, board, commission, or other statutory unit of state or local government or any functional subdivision of that agency.

(((3))) (4) "Application assistant" means an employee of a state or local agency, or of a nonprofit program that provides advocacy, counseling, referral, or shelter services to victims of sexual assault, domestic violence, trafficking, or stalking who has been designated by the respective agency, and has been accepted by the secretary of state to assist individuals with threat assessment, safety planning, determining whether the program's services can help keep the victim safe, and the completion and submission of the ACP application.

(((4))) (5) "Authorization card form" means the incomplete form for an authorization card on which no identifying program participant information has been entered.

(((5))) (6) "Authorized personnel" means an employee of a county auditor's office, a county recording office, the Washington state department of health, or the office of the secretary of state who has been designated by the chief executive officer of the respective agency, to process and have access to voter application, voting records, marriage applications and records pertaining to program participants.

(((6))) (7) "Bona fide statutory or administrative requirement" means that without possession of an individual's actual residential address the agency is incapable of fulfilling its statutory duties and obligations.

(((7))) (8) "Protected records voter" means a program participant who has applied and qualified as ((a service)) an ongoing absentee voter, as provided under RCW ((29A.04.163, with ongoing absentee ballot voter status, as provided under RCW 29A.40.140)) 40.24.060.

(((8))) (9) "Record" means any information relating to the conduct or performance of a governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

(((9))) (10) "Substitute mailing address" means the mailing address designated by the secretary of state which shall not be the program participant's residential address as documented on her or his application for program participation.

(((10) "Residential address" means the physical location where the participant resides for which the participant is requesting confidentiality.))

[Statutory Authority: RCW 40.24.090. 05-13-059, 434-840-005, filed 6/9/05, effective 7/10/05. Statutory Authority: RCW 29A.04.610. 04-15-089, 434-840-005, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-005, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-005, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-010   Application and certification process.   (1) The program applicant shall provide all the information required on the certification application and date and sign the form. An applicant shall specify ((a)) any Washington state residential ((address)) addresses, work, and school addresses, if any, for which confidentiality is requested. The standard application form shall also include the application preparation date, and the signature of the application assistant as provided in RCW 40.24.080.

(2) An individual who has filed a properly completed application shall be certified as a program participant and issued a program participant authorization card. The authorization card shall include the program participant's name, authorization code, substitute mailing address, certification expiration date, and applicant's signature.

(3) A properly completed application shall be effective on the day it is received by the address confidentiality program.

(4) The term of a program participant's certification shall be four years following the effective date of her or his application unless the certification is withdrawn or invalidated before that date.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-010, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-010, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-060   Information release to law enforcement agency.   A request from a law enforcement agency for release of records in a program participant's file containing no indication the participant has reason to believe he or she is a victim of domestic violence, sexual assault, trafficking, or stalking perpetrated by an employee of a law enforcement agency, shall be in writing, on agency letterhead stationery, and shall contain the signature of the agency's chief law enforcement officer or his or her designee as defined in RCW 10.98.040, the request date, and the name of the program participant.

A request from a law enforcement agency for release of records in a program participant's file in which the participant's application affirmatively indicates that the applicant has reason to believe he or she is a victim of domestic violence, sexual assault, trafficking, or stalking perpetrated by an employee of a law enforcement agency, must be accompanied by a court order for release of records in the program participant's file.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-060, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-060, filed 9/26/91, effective 10/27/91.]


NEW SECTION
WAC 434-840-063   Issuance of a court order for address confidentiality program participant information.   A court order for address confidentiality program participant information may only be issued upon a probable cause finding by a judicial officer that release of address confidentiality program participant information is legally necessary:

(1) In the course of a criminal investigation or prosecution; or

(2) To prevent immediate risk to a minor and meet the statutory requirements of the Washington child welfare system. Any court order so issued will prohibit the release of the information to any other agency or person not a party to the order.

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NEW SECTION
WAC 434-840-065   Information release to nonlaw enforcement agency.   A request from a nonlaw enforcement agency for release of records in a program participant's file must be accompanied by a court order for release of records in the program participant's file.

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AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-100   Acknowledgement for marriage and voting record confidentiality.   (1) When a program participant requests confidentiality for marriage records, both the program participant and her or his intended spouse shall sign and date a statement provided by the secretary of state, that describes access limitations on confidential marriage records.

(2) When a program participant requests confidentiality for voting records, she or he shall sign a statement provided by the secretary of state((,)) that documents the date of this request and the ongoing absentee ballot voting process to be used.

(3) The authorized personnel shall ((keep)) receive the original copy of this signed acknowledgement, ((forward one copy to)) the address confidentiality program shall have one copy and ((give one copy to)) the program participant shall have one copy.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-100, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-100, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 05-13-059, filed 6/9/05, effective 7/10/05)

WAC 434-840-110   Proof of program participant's authority.   (1) When a program participant requests name and address confidentiality for a marriage ((or voting)) record((s)), authorized personnel shall check the authorization card to confirm that the term of program participation has not expired and that the program participant's signature on the authorization card matches that on the acknowledgement form.

(2) Authorized personnel may make a photocopy of the program participant's authorization card. The authorization card shall be immediately returned to the program participant. The photocopy shall be kept with the confidential marriage ((or voting)) record((s)) for this program participant during the time the record((s are)) is filed and maintained by the county auditor or county recording officer. The authorized personnel may call the program to verify an individual's current participation status in the program.

[Statutory Authority: RCW 40.24.090. 05-13-059, 434-840-110, filed 6/9/05, effective 7/10/05; 98-19-063, 434-840-110, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-110, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-230   Marriage record transmission to department of health.   The county authorized personnel shall transmit a completed marriage certificate containing the name and address of a program participant((,)) to the department of health in an envelope distinctly marked "confidential records."

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-230, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-230, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 05-13-059, filed 6/9/05, effective 7/10/05)

WAC 434-840-310   Protected records voter ((application)) status.   (1) A program participant shall ((notify the appropriate county authorized personnel of her or his request for confidentiality in voting records)) apply for protected records voter status by appearing in person before the appropriate county authorized personnel or requesting an application from the address confidentiality program. The program participant shall: (a) ((Present her or his program authorization card; (b))) Cancel any previously existing voter registration; and (((c) apply to vote by providing)) (b) provide all the information required on the ((address confidentiality program ongoing absentee ballot)) protected records voter registration application.

(2) The program participant shall disclose to the authorized personnel the actual address of her or his residence only for the purpose of determining the proper precinct ((and district designations.

(3) An application for protected records voter status and an absentee ballot to be issued to the participant in person, may be made no later than the day before an election. An application for protected records voter status and an absentee ballot to be mailed to the substitute mailing address shall be made no later than twenty working days before the first election in which the program participant wishes to vote)).

[Statutory Authority: RCW 40.24.090. 05-13-059, 434-840-310, filed 6/9/05, effective 7/10/05; 98-19-063, 434-840-310, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-310, filed 9/26/91, effective 10/27/91.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 434-840-320 Maintaining protected records voter information.
WAC 434-840-330 Mailing protected records voter ballots.
WAC 434-840-340 Processing protected records voter ballot.
WAC 434-840-350 Canvassing procedure for a special ballot of a protected records voter.
WAC 434-840-360 Undeliverable ballot.
WAC 434-840-370 Election challenges.

Washington State Code Reviser's Office