WSR 08-24-062

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed November 26, 2008, 2:36 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-17-045.

Title of Rule and Other Identifying Information: Chapter 16-06 WAC, Public records.

Hearing Location(s): Washington State Department of Agriculture, Natural Resources Building, Conference Room 259, 1111 Washington Street S.E., Olympia, WA 98504-2560, on January 7, 2009, at 1:30 p.m.

Date of Intended Adoption: January 12, 2009.

Submit Written Comments to: Teresa Norman, P.O. Box 42560, Olympia, WA 98504-2560, e-mail WSDARulesComments@agr.wa.gov, fax (360) 902-2092, by January 8, 2009, 5:00 p.m.

Assistance for Persons with Disabilities: Contact WSDA receptionist by January 2, 2009, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: In accordance with the Public Records Act, the department of agriculture maintains a procedural rule describing its organizational structure and outlines the process to follow when persons are interested in accessing public records held by the department. The existing rule requires updating, which is what the proposed rule represents.

In addition, information, information in plans, records, and reports obtained by state and local agencies from dairies, animal feeding operations, and concentrated animal feeding operations, not required to apply for a national pollutant discharge elimination system permit is disclosable only in ranges that provide meaningful information to the public while ensuring confidentiality of business information. After consulting with affected parties, the proposed rule contains ranges for the following information: (1) Number of animals; (2) volume of livestock nutrients generated; (3) number of acres covered by the plan or used for land application of livestock nutrients; (4) livestock nutrients transferred to other persons; and (5) crop yields.

Statutory Authority for Adoption: For WAC 16-05-155 is chapters 34.05, 42.17, 42.56, and 43.23 RCW; all other sections is chapters 34.05, 42.56, and 43.23 RCW.

Statute Being Implemented: Chapters 34.05, 42.17, 42.56, and 43.23 RCW.

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

Name of Proponent: Washington state department of agriculture, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Dannie McQueen, 1111 Washington Street S.E., Olympia, WA 98504-2560, (360) 902-1809.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule benefits individuals who desire access to the department of agriculture's records and does not add any economic burdens on those individuals.

A cost-benefit analysis is not required under RCW 34.05.328. The Washington state department of agriculture is not a named agency in RCW 34.05.328 (5)(a)(i).

November 19, 2008

Betty Ramage

Assistant Director

OTS-9946.6


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-150   The ((reason for)) purpose of the rule.   The ((reason for)) purpose of this chapter is to ((ensure compliance by)) establish the procedures the Washington state department of agriculture ((with)) will follow to provide full access to public records, and to implement the provisions of the Public Records ((Disclosure)) Act, chapter 42.56 RCW ((42.17.250 through 42.17.340, and RCW 34.05.220 through 34.05.240 and RCW 34.05.330)). These rules provide information to persons requesting access to the department's public records and establish procedures for both requestors and department staff.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-150, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-155   Definitions.   (((1) "Denial of disclosure" denotes any exempting from disclosure of any public record.

(2))) "Department" means the Washington state department of agriculture.

(((3))) "Disclosure" means inspection ((and/)) or copying.

(((4))) "Public records" 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 department regardless of physical form or characteristics.

(((5))) "Writing" means handwriting, typewriting, printing, photostating, telefaxing, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents, including existing data compilations from which information may be obtained or translated.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-155, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-160   Description of ((agency)) department organization, address and telephone number of Olympia administrative offices.   The administrative offices of the Washington state department of agriculture are located in the Natural Resources Building, 1111 Washington Street SE, P.O. Box 42560, Olympia, Washington 98504-2560. The information telephone number is (360) 902-1800. The department is organized into ((six)) seven divisions:

(1) ((Agency operations)) Director's office;

(2) Administrative services division;

(((2))) (3) Animal services division;

(4) Commodity inspection division;

(((3) Consumer and producer protection division;

(4) Food safety and animal health division;))

(5) ((Laboratory services division; and)) Food safety and consumer services division;

(6) Pesticide management division; and

(7) Plant protection division.

The department maintains service locations or major field offices around the state. Several of these offices are headed by a supervisor or chief. The administrative offices located in Olympia ((will)) can assist persons in ((determining)) locating office locations around the state. ((An)) The department's organization chart ((of the department)) is available upon request from the Public Records Officer and the Human Resources Office, Washington State Department of Agriculture, P.O. Box 42560, Olympia, Washington 98504-2560.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-160, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-165   ((Agency)) Department organization description by division and program.   An organizational description by division and program is as follows:

Director's office:

((- Legislative affairs
- Policy development and review))
The director's office covers legislative affairs, internal program review, domestic and international marketing, policy development and review, bioenergy coordination, agency communications, and quality and performance.
((Agency operations)) Administrative services division:

((-)) The administrative services division includes accounting, budget, payroll, forms and records, adjudicative proceedings, public disclosure, Washington administrative code filings, personnel office, ((data processing)) information technology services, ((information office, international marketing and commodity commission and fairs commission activities)) safety and risk management, commodity commission activities, and the fairs commission program.
Animal services division:

The animal health program conducts programs to monitor, diagnose, manage and eradicate specific animal diseases such as tuberculosis, scrapie, and poultry diseases, and conducts programs to prevent the introduction of foreign animal diseases. The program manages animal health emergencies and responds to certain animal welfare issues.
The livestock brand inspection program registers brands and inspects livestock when animal ownership changes or animals leave the state. This program provides services to cattle and horse owners in an effort to prevent theft of the animals and licenses feedlots and sales facilities. The establishment and licensure of livestock markets is also implemented within this program.
The animal identification program implements the voluntary national animal identification system in Washington state to facilitate the tracking of animals and managing animal disease outbreaks.
Commodity inspection division:

((- Fruit and vegetable inspection program for quality, grade, condition, size and pack
- Conducts statewide grain inspection
Consumer and producer protection division:

- Commission merchants program
- Livestock identification, brand registration and inspection
- Establishment of livestock markets
- Grain warehouse audit
- Weights and measures program
- Seed program regulates the quality and labeling of various crop seeds in Washington
Food safety and animal health division:

- Dairy inspection program
- Food processing program
- Organic food program
- Egg inspection program
- Animal health program
Laboratory services division:

- Performs chemical and micro-biological analyses in support of the food safety and pesticide management programs
- Administers hop inspection and analyses
- Pest management program is responsible for nonnative insect detection and control, and plant pest and disease identification; develops and enforces plant quarantines
- Apiary program provides education and registration over Washington apiarists
- Nursery program certifies nursery stock and issues phytosanitary certificates for materials moving out-of-state))
The fruit and vegetable inspection program provides phytosanitary certification, shipping point inspection, third-party grading of raw product for processing and export certification, and licenses controlled atmosphere storage facilities.
The grain inspection program provides inspection, analytical, and weighing services to ensure orderly commerce for grain, dry peas, lentils, rapeseed, and similar commodities produced in Washington state or shipped through Washington ports from other states.
The grain warehouse audit program licenses, bonds, and audits public grain storage warehouses and grain dealers who buy covered commodities from producers. Auditing procedures include verification of grain records and purchase contracts with producers, and a physical inventory of stored commodities at warehouses.
The seed program inspects fields for insects and disease; inspects and tests seed for purity and germination; provides phytosanitary certification for export; and issues labeling permits. The program areas of responsibility are seed certification, seed testing, phytosanitary inspection and testing, and seed law enforcement.
Food safety and consumer services division:

The food safety program inspects and licenses dairy and food processing facilities and provides services aimed to protect the public from injury and illness caused by food, dairy, and egg products that are contaminated, adulterated or otherwise unfit for consumption.
The livestock nutrient management program inspects dairy farms; provides assistance; and enforces laws that include state and federal water quality laws and rules regarding animal feeding operations.
The microbiology laboratory supports the food safety program by testing food and dairy products for quality measures and for food poisoning organisms, and by examining food products for contamination by insects, rodents or filth. The laboratory also supports animal health programs by testing animal blood and tissue for disease to aid in disease eradication programs and to allow animals to move interstate or internationally.
The organic food program inspects and licenses organic producers and processors. The program provides services to consumers and supports the organic food industry by ensuring that all food products making organic claims meet standards for organic production and labeling.
Pesticide management division:

((-)) The pesticide management division administers the ((regulations of)) laws and rules related to pesticides, animal feed((s)) and fertilizer ((laws)), and administers the pesticide waste disposal program ((broken down into three units of the division)).
((-)) The compliance ((unit)) program enforces state and federal pesticide laws, animal feed laws and fertilizer laws; and investigates complaints of pesticide misuse.
((-)) The registration ((unit)) program registers pesticides, fertilizers and animal feeds sold and used in the state of Washington.
((-)) The ((program development and)) certification ((unit)) and training program conducts ((the)) waste pesticide disposal ((program)) activities; provides interagency coordination on pesticide-related issues; provides safety training on the use of pesticides, ((which includes)) including public outreach and new program development; licenses pesticide application equipment, pesticide dealers, structural pest inspectors, and commercial, public, and private pesticide applicators, operators and consultants; approves recertification courses; and tracks educational credits on pesticide and inspector licensees.
Plant protection division:

The chemistry and hop program supports several department programs by analyzing samples taken in investigations of alleged pesticide misuse; monitors food for pesticide residues; analyzes commercial feed and fertilizer samples to determine if they meet label guarantees; grades hops for seed, stem and leaf content; and analyzes hops for brewing value.
The commission merchants program licenses commission merchants, dealers, brokers, and cash buyers, which includes administering required bonds and the investigation of complaints.
The pest program provides services aimed to prevent the establishment of high-risk and exotic insects, plant diseases, weeds and other pest species through surveys, inspections, quarantines, and eradication projects.
Plant services program provides regulatory inspection of nurseries in an effort to provide consumers and the nursery industry with healthy, pest-free and disease-free plant materials; enforces quarantines to prevent pest introductions; and provides testing and inspection services to assure pest-free planting stock.
The weights and measures program checks prepackaged items to verify quantity of contents; inspects and tests commercial weighing and measuring devices; licenses public weighmasters and weighers; responds to consumer complaints; surveys labeling and advertising of products packaged or sold by weight, measure, or count; and develops standards and conducts compliance activities related to motor fuels and biofuels.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-165, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-180   ((The agency's)) Public records officer ((is available for assistance, appeals of denial of disclosure and information about the agency's index)).   (1) ((The department shall designate one public records officer, located in the agency operations division who shall:

(a) Be responsible for implementing the department's process regarding disclosure of public records;

(b) Coordinate departmental staff in this regard, generally ensuring the compliance of the staff with public records disclosure requirements;

(c) Make the final decision if a records request has been denied and a petition for review is filed under the procedures in WAC 16-06-220;

(d) Have the option of waiving the requirement that a records request be in written form;

(e) Maintain the agency's index as required under chapter 42.17 RCW.)) Any person wishing to request access to the department's public records, or seeking assistance in making a public records request, should contact the public records officer.

(2) ((The address of)) You may contact the public records officer ((is:)) by mail at Washington State Department of Agriculture, 1111 Washington Street SE, P.O. Box 42560, Olympia, Washington 98504-2560((; or call the Olympia administrative office)), by telephone at ((())360(()))-902-1809, by fax at 360-902-2092, or by e-mail at: publicdisclosure@agr.wa.gov.

(3) The name of the department's current public records officer is also on file with the office of the code reviser in accordance with RCW 42.56.580 and is published in the Washington State Register.

(4) The public records officer will oversee compliance with the Public Records Act, but a designee of the public records officer may process the request or otherwise fulfill the duties of the public records officer. The public records officer will provide the fullest assistance to requestors.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-180, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-185   Availability of public records.   (1) All the department's public records ((of the department)) are available for disclosure except as otherwise provided by chapter 42.56 RCW or any other law. ((Requests for public record may be initiated at any department office during customary business hours, Monday through Friday, excluding legal holidays.)) Many records are available on the department's web site at: http://agr.wa.gov. Requestors are encouraged to view the records available on the web site prior to submitting a records request.

(2) The department ((shall)) will respond promptly to requests for disclosure. E-mail requests will be handled in the same manner as other types of mail received by the department. Public records requests received by e-mail after regular business hours will be considered received on the next business day. Within five business days of receiving a public records request, the department ((shall)) will respond by doing one or more of the following:

(a) ((Providing the record)) Make the records available for inspection or copying;

(b) ((Acknowledging the department has received the request and providing a reasonable estimate of the time the department will require to respond to the request)) Send the copies to the requestor if copies are requested and payment of a deposit for the copies is made or terms of payment have been agreed upon; ((or))

(c) ((Deny)) Provide a reasonable estimate of when records will be available;

(d) Request clarification from the requestor if the request is unclear or does not sufficiently identify the requested records. Clarification may be requested and provided by telephone; or

(e) Deny the public records request.

(3) ((Additional time for the department to respond to a request may be based on the need to:

(a) Clarify the intent of the request;

(b) Locate and assemble the information requested;

(c) Notify third persons or agencies affected by the request; or

(d) Determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request.

(4) In acknowledging receipt of a public record request that is unclear, the department may ask the requestor to clarify what information the requestor is seeking. If the requestor fails to clarify the request, the department need not respond to it.

(5) If the department does not respond in writing within five business days of receipt of the request for disclosure, the person seeking disclosure shall be entitled to:

(a) Consider the request denied; and

(b) Petition the public records officer under WAC 16-06-180.)) The public records officer may revise the estimate of when records will be available when it is necessary to clarify the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine whether any of the information requested is exempt from disclosure.

(4)(a) Some records are exempt from disclosure, in whole or in part. If the department believes that a record is exempt from disclosure and should be withheld, the department will provide a written statement of the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld.

(b) If only a portion of a record is exempt from disclosure, the department will redact the exempt portions, provide the nonexempt portions, and indicate to the requestor why portions of the records are being redacted.

(5) In the event the requested records name a specific person or pertain to a specific person and may be exempt from disclosure, the department may, prior to providing the records, give notice to others whose rights may be affected by the disclosure. Sufficient notice will be given to allow affected persons to seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.

(6)(a) The public records officer may provide access for inspection and copying of records in installments when the request is for a large number of records.

(b) The public records officer may stop searching for the remaining records and close the request if within thirty days the requestor fails to claim or inspect records in one or more of the installments.

(c) The department has the discretion to determine the order in which it responds to requests for public records based on staff and resource availability, the size of the request, and the ease in locating or duplicating the records requested.

(7) The public records officer will close the request and indicate to the requestor that the department has closed the request when the requestor:

(a) Withdraws the request;

(b) Fails to provide clarification when requested by the department;

(c) Fails to fulfill obligations to inspect the records; or

(d) Fails to pay the deposit or pay the final payment for the requested copies.

(8) If, after the department has informed the requestor that it has provided all available records, the department becomes aware of additional responsive records existing at the time of the request, it will promptly inform the requestor of the additional records and provide them on an expedited basis.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-185, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-190   ((Request)) Public records ((in writing using a department-issued form or the format provided in this rule)) requests.   (1) ((All requests for the disclosure of a public record shall be in writing on a department of agriculture disclosure form as prescribed by WAC 16-06-235, or a format which substantially complies with WAC 16-06-235, and identifies the record being sought with reasonable certainty. The written request shall include but is not limited to:)) A person wishing to inspect or copy the department's public records may make the request in writing on the department's public records request form or in writing by first class mail, e-mail, or fax. Requests for public records may be initiated at any department office during customary business hours, Monday through Friday, excluding legal holidays. Requests must include the following information:

(a) The name, address and telephone number or other contact information of the person requesting the records;

(b) The ((calendar)) date on which the request is made; and

(c) Sufficient information to readily identify ((documents)) records being requested.

(2) ((A request for disclosure shall be made during customary office hours.

(3) In all cases in which a member of the public is making the request, it shall be the obligation of department staff to assist the member of the public to appropriately identify the public record being requested.

(4) A form for requesting department documents can be obtained from any administrative office of the department or a person can format a request in a similar format as prescribed in WAC 16-06-235.)) (a) The request should be submitted to the public records officer at: Washington State Department of Agriculture, P.O. Box 42560, Olympia, Washington 98504-2560.

(b) The request may also be submitted by fax to 360-902-2092 or by e-mail at: publicdisclosure@agr.wa.gov.

(3) If a requestor cannot submit a request for public records in writing and desires to make an oral request either in person or by telephone, the public records officer or designee receiving the request will summarize the request in writing and then verify in writing with the requestor that the summary correctly memorializes the request.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-190, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-200   Costs of disclosure.   (1) No fee ((shall)) will be charged for the inspection of public records.

(2) The department ((shall)) charges a fee of fifteen cents per page of copy when copy charges exceed ten dollars for providing copies of public records. The department may also charge actual costs of mailing, including the cost of the shipping container. This charge is the amount necessary to reimburse the department for ((its)) copying costs incident to ((such copying and shall be payable at the time copies are furnished)) the disclosure request.

(3) The department may charge the actual cost involved for the duplication of tape recordings, video tapes, photographs, slides, postage, or delivery((,)) if these costs exceed ten dollars.

(4) The public records officer ((or the public records coordinator)) may waive ((any of the foregoing costs)) the fee when the expenses of processing payment exceeds the costs of providing copies.

(5) Electronic records: The department may charge the actual costs incurred for providing recordings in electronic format, such as the cost of scanning records or the cost of providing records on a CD-ROM. There will be no charge for e-mailing electronic records to a requestor unless another cost applies.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-200, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-205   Protection of public records.   In order to adequately protect the department's public records ((of the department)), the following will apply:

(1) ((No)) Public records ((shall)) made available for inspection may not be removed from the ((department's premises)) area the department makes available for inspection. The department has the discretion to designate the means and the location for the inspection of records.

(2) Inspection of any public record ((shall)) will be conducted in the presence of a designated department employee.

(3) ((No)) Public records may not be marked or altered in any manner during inspection.

(4) After inspection is complete, the public records officer or designee will make requested copies or arrange for copying.

(5) Public records that are maintained in a file or jacket, or in chronological order, may not be dismantled except by a designated department employee for purposes of copying.

(((5) Upon request of a member of the public to examine)) (6) Whenever a public records request involves an entire file ((or)), a group of ((documents)) records, ((as distinguished from a request to examine certain individual documents)) or a large number of records, the department ((shall be)) is allowed a reasonable time to ((inspect)) review the ((file)) records to determine whether information ((protected)) is exempt from disclosure ((by)) under chapter ((42.17)) 42.56 RCW ((is contained therein)) or other law.

(((6) When copying public documents, the copy machine will be operated by staff persons of the department only.))

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-205, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-210   Exemptions.   ((The department reserves the right to determine if a requested public record is exempt or nondisclosable under RCW 42.17.250 et seq. Nondisclosable records include, but are not limited to:

(1) Personal information in any files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy pursuant to RCW 42.17.310 (1)(b).

(2) Investigative material pursuant to RCW 42.17.310 (1)(d) and (e).

(3) Test questions, scoring keys and other examination data used to administer a license, pursuant to RCW 42.17.310 (1)(f).

(4) Preliminary drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with action (RCW 42.17.310 (1)(i)).

(5) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

(6) Lists of individuals requested for commercial purposes. The department shall not disclose such records unless specifically authorized or directed to do so by law: Provided, 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.

(7) Information on commercial fertilizer distribution, pursuant to RCW 42.17.317.

(8) Information on commercial feed pursuant to RCW 15.53.9018.

(9) Confidential information regarding individual company operations or production found in the Washington State Seed Act, RCW 15.49.370(8).

(10) Business related information obtained under the Organic Food Products Act concerning an entity certified under that act or an applicant for such certification, which is found under RCW 15.86.110.

(11) Privileged or confidential information or data required under the Washington Pesticide Control Act which contains trade secrets, commercial or financial information, which is found under RCW 15.58.065.

(12) Financial and commercial information and records supplied by private persons pertaining to export services provided pursuant to chapters 43.163 and 53.31 RCW, and by persons pertaining to export projects pursuant to RCW 43.23.035.

(13) Pursuant to chapter 43.23 RCW, except for release of statistical information not descriptive of any readily identifiable person or persons, all financial and commercial information and records supplied by persons to the department with respect to export market development projects shall be kept confidential unless confidentiality is waived by the party supplying the information. For purposes of this section, persons include any natural person, joint venture, firm, partnership or association, private or public corporation, or governmental entity.

(14) The following agricultural business and commodity commission records are exempt from the disclosure requirements of chapter 42.17 RCW:

(a) Production or sales records required to determine assessment levels and actual assessment payments to commodity commissions formed under chapters 15.24, 15.26, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88 and 16.67 RCW or required by the department of agriculture under RCW 15.13.310(4) or 15.49.370(6);

(b) Consignment information contained on phytosanitary certificates issued by the department of agriculture under chapters 15.13, 15.49 and 15.17 RCW or federal phytosanitary certificates issued under 7 C.F.R. 353 through cooperative agreements with the animal and plant health inspection service, United States Department of Agriculture or on applications for phytosanitary certification required by the department of agriculture; and

(c) Financial and commercial information and records supplied by persons to commodity commissions formed under chapters 15.24, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88 and 16.67 RCW with respect to domestic or export marketing activities or individual producer's production information.)) The Public Records Act provides that a number of types of information or records are exempt from public inspection and copying. In addition, records are exempt from disclosure if any other statute exempts or prohibits disclosure. Requestors should be aware of the following exemptions to public disclosure specific to department records. This list is not exhaustive and other exemptions may apply:

(1) Personal information in any files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy (reference RCW 42.56.230(2)).

(2) Investigative records (reference RCW 42.56.240).

(3) Test questions, scoring keys, and other examination data used to administer a license (reference RCW 42.56.250(1)).

(4) Records that are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts (reference RCW 42.56.290).

(5) Lists of individuals requested for commercial purposes (reference RCW 42.56.070(9)).

(6) Social Security numbers are confidential and not subject to disclosure except when expressly required by or governed by other law (reference RCW 41.56.250; for full text, see subsection (9) of this section).

(7) Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers, except when disclosure is expressly required or governed by other law (reference RCW 42.56.230(4)).

(8) Applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to the applicant (reference RCW 42.56.250(2)).

(9) Residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, Social Security numbers and emergency contact information of employees or volunteers of a public agency, and the names, dates of birth, residential addresses, residential telephone numbers, personal wireless telephone numbers, personal electronic mail addresses, Social Security numbers, and emergency contact information of dependents of employees or volunteers of a public agency that are held by any agency in personnel records, public employment related records, or volunteer rosters, or are included in any mailing list of employees or volunteers of any public agency (reference RCW 42.56.250(3)).

(10) Information provided for the semi-annual report for fertilizers, minerals and limes that would reveal the business operation of the person making the report (reference RCW 15.54.362(5) and 42.56.380(2)).

(11) The semiannual report required in the Commercial Feed Act is not a public record, and any information given in such report which would reveal the business operation of the person making the report is exempt from disclosure, and information obtained by the department from other governmental agencies or other sources that is used to verify information received in the report is exempt from public disclosure (reference RCW 15.53.9018).

(12) The department has the authority to publish reports of official seed inspections, seed certifications, laboratory statistics, verified violations of this chapter, and other seed branch activities which do not reveal confidential information regarding individual company operations or production (reference RCW 15.49.370(8)).

(13) Business related information obtained under the Organic Food Products Act concerning an entity certified under that act or an applicant for certification under RCW 15.86.110, and records whose disclosure is prohibited by the federal Organic Certification Act, 7 U.S.C. Sec. 6515(g) and the rules adopted under that act (reference RCW 42.56.380(1)).

(14) Consignment information contained on phytosanitary certificates issued by the department under chapters 15.13, 15.17, and 15.49 RCW or federal phytosanitary certificates issued under 7 C.F.R. 353 through cooperative agreements with the animal and plant health inspection service, United States Department of Agriculture, or on applications for phytosanitary certification required by the department (reference RCW 42.56.380(4)).

(15) Financial and commercial information and records supplied by businesses or individuals during application for loans or program services provided by the former chapter 15.110 RCW or chapter 43.325 RCW (the energy freedom loan program) (reference RCW 42.56.270(4)).

(16) Information obtained under RCW 15.19.080 regarding the purchases, sales, or production of an individual American ginseng grower or dealer (reference RCW 42.56.380(6)).

(17) Financial statement information required to determine whether or not an applicant for a license to operate a warehouse under chapter 22.09 RCW, agriculture commodities, meets minimum net worth requirements (reference RCW 22.09.040(9)).

(18) All financial statement information to determine whether or not an applicant for a license to be a grain dealer under chapter 22.09 RCW meets the minimum net worth requirements (reference RCW 22.09.045(7)).

(19) Information submitted by an individual or business for the purpose of participating in a state or national animal identification system. Disclosure to local, state, and federal officials is not public disclosure. This exemption does not affect the disclosure of information used in reportable animal health investigations under chapter 16.36 RCW once they are complete (reference RCW 42.56.380(9)).

(20) Results of testing for animal diseases not required to be reported under chapter 16.36 RCW that is done at the request of the animal owner or the owner's designee and that can be identified to a particular business or individual is exempt from disclosure (reference RCW 42.56.380(10)).

(21) Information that can be identified to a particular business and that is collected under chapter 15.17 RCW, standards of grades and packs, and specifically RCW 15.17.140(2) and 15.17.143 for certificates of compliance (reference RCW 42.56.380(7)).

(22) Financial statement information provided under RCW 16.65.030 (1)(d), public livestock markets, is confidential information and not subject to public disclosure (reference RCW 16.65.030 (1)(d) and 42.56.380(8)).

(23) Privileged or confidential information or data that contains trade secrets, commercial, or financial information and is required and submitted under the Washington Pesticide Control Act (reference RCW 15.58.060 (1)(c) and 15.58.065).

(24) Except for release of statistical information not descriptive of any readily identifiable person or persons, all financial and commercial information and records supplied by persons to the department with respect to export market development projects (reference RCW 43.23.270 and 42.56.270(3)).

(25) Information submitted by an applicant under chapter 17.24 RCW that is privileged or confidential because it contains trade secrets or commercial or financial information (reference RCW 17.24.061).

(26) Production or sales records required to determine assessment levels and actual assessment payments to commodity boards and commissions formed under chapters 15.24, 15.26, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.89, 15.100, and 16.67 RCW, or required by the department to administer these chapters or the department's programs (reference RCW 42.56.380(3)).

(27) Financial and commercial information and records supplied by persons:

(a) To the department for the purpose of conducting a referendum for the potential establishment of a commodity board or commission; or

(b) To the department or commodity boards or commissions formed under chapters 15.24, 15.28, 15.44, 15.65, 15.66, 15.74, 15.88, 15.89, 15.100, or 16.67 RCW, with respect to domestic or export marketing activities or individual producer's production information (reference RCW 42.56.380(5)).

(28) Farm plans developed by conservation districts, unless the farm plan is used for the application or issuance of a permit (reference RCW 42.56.270(17)).

(29) Under RCW 42.56.610 and 90.64.190, information identifying the number of animals; volume of livestock nutrients generated; number of acres covered by the plan or used for land application of livestock nutrients; livestock nutrients transferred to other persons; and crop yields in plans, records, and reports obtained by state and local agencies from dairies, animal feeding operations, and concentrated animal feeding operations not required to apply for a National Pollutant Discharge Elimination System permit is disclosable in the following ranges:

(a) Number of animals: Beef cattle

1 to 19

20 to 159

160 to 299

300 to 999

1,000 to 5,999

6,000 to 10,999

11,000 to 15,999

16,000 to 20,999

21,000 to 25,999

26,000 to 31,199

31,200 to 37,439

37,440 to 44,999

45,000 and above

(b) Number of animals: Mature dairy cattle

1 to 37

38 to 199

200 to 699

700 to 1,699

1,700 to 2,699

2,700 to 3,699

3,700 to 4,699

4,700 to 5,699

5,700 to 6,839

6,840 and above

(c) Number of animals: Dairy heifers

1 to 49

50 to 149

150 to 299

300 to 999

1,000 to 1,999

2,000 to 2,999

3,000 to 3,999

4,000 and above

(d) Number of animals: Swine (fifty-five pounds or greater)

1 to 19

20 to 159

160 to 399

400 to 749

750 to 2,499

2,500 to 4,249

4,250 to 5,999

6,000 to 7,749

7,750 and above

(e) Number of animals: Swine (less than fifty-five pounds)

1 to 99

100 to 499

500 to 1,099

1,100 to 1,999

2,000 to 2,999

3,000 to 9,999

10,000 to 16,999

17,000 to 23,999

24,000 to 30,999

31,000 and above

(f) Number of animals: Layers (all ages)

1 to 199

200 to 999

1,000 to 10,999

11,000 to 24,999

25,000 to 81,999

82,000 to 138,999

139,000 to 195,999

196,000 to 252,999

253,000 to 309,999

310,000 to 371,999

372,000 to 446,399

446,400 to 535,679

535,680 to 642,815

642,816 to 771,379

771,380 to 925,655

925,656 to 1,110,787

1,110,788 to 1,332,945

1,332,946 and above

(g) Number of animals: Broilers (all ages)

1 to 199

200 to 999

1,000 to 17,999

18,000 to 37,499

37,500 to 124,999

125,000 to 212,499

212,500 to 299,999

300,000 and above

(h) Number of animals: Horses

1 to 19

20 to 79

80 to 149

150 to 499

500 to 849

850 to 1,199

1,200 to 1,549

1,550 and above

(i) Livestock nutrients generated or exported by volume (ft3/day)

1 to 74

75 to 134

135 to 299

300 to 449

450 to 749

750 to 1,499

1,500 to 2,499

2,500 to 4,999

5,000 to 8,499

8,500 to 11,999

12,000 to 15,999

16,000 and above

(j) Livestock nutrients generated or exported by weight (tons/year)

1 to 5,256

5,257 to 10,512

10,513 to 21,024

21,025 to 42,048

42,049 to 84,096

84,097 to 164,184

164,185 to 262,734

262,735 to 394,200

394,201 to 558,384

558,385 to 722,634

722,635 to 919,734

919,735 to 1,051,134

1,051,135 and above

(k) Number of acres covered by the plan or used for land application of livestock nutrients

0 to 25

26 to 65

66 to 120

121 to 300

301 to 550

551 to 900

901 to 1,300

1,301 to 1,800

1,801 to 2,500

2,501 to 3,200

3,201 to 4,000

4,001 to 6,000

6,001 to 9,000

9,001 to 11,500

11,501 to 14,000

14,001 and above

(l) Crop yields - tons/acre

0 to 1

1.1 to 2

2.1 to 3.5

3.6 to 5

5.1 to 7

7.1 to 9

9.1 to 12

12.1 to 14.5

14.6 to 17

17.1 to 19.5

19.6 to 22

22.1 to 26

26.1 and above

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-210, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-220   Review of denial of request for inspection ((for)) or copying of public records.   (1) Any person who objects to the initial denial of a records request ((for a public record may petition for prompt review of such decision by submitting a written request for review to the department's public records officer located in the Olympia administrative office. The written request shall specifically refer to the written statement that constituted or accompanied the denial of disclosure)) may petition in writing to the public records officer for a review of that decision. The petition shall include a copy of or reasonably identify the written statement by the department denying the request.

(2) ((Immediately after receiving a petition for review of a decision denying a public record, the public records designee or public records coordinator denying the request shall refer it to the public records officer. The public records officer shall review decisions denying disclosure in the most prompt fashion possible, and such review shall be deemed completed at the end of the second business day following receipt by the department of the petition for review. This shall constitute final agency action for the purposes of judicial review, pursuant to RCW 42.17.320. If the public records officer neither approves nor disapproves the denial of the request before the end of the second business day following the denial of inspection, the denial of inspection shall be deemed approved by the department, and constitutes a final agency action pursuant to RCW 42.17.320.)) The public records officer will immediately consider the petition and either affirm or reverse the denial within two business days following the department's receipt of the petition, or within such other time as the department and the requestor mutually agree to.

(3) Under RCW 42.56.530, if the department 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 to review the matter. The attorney general has adopted rules on such requests in WAC 44-06-160.

(4) Any person may obtain court review of a denial of a public records request under RCW 42.56.550 at the conclusion of two business days after the initial denial, regardless of any internal administrative appeal.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-220, filed 7/2/96, effective 8/2/96.]


AMENDATORY SECTION(Amending WSR 96-14-086, filed 7/2/96, effective 8/2/96)

WAC 16-06-225   Records index.   (1) The department's public records officer ((of the department)), located in the Olympia administrative office, ((shall)) will develop and maintain an agency index of((: (1)(a) Records issued prior to July 1, 1990, by relying on agency)) the following records:

(a) Department records retention schedules;

(b) Final orders;

(c) Declaratory orders entered after June 30, 1990;

(d) Interpretative statements;

(e) Policy statements; and

(f) ((Agency)) Department rule docket((; and

(g) Other agency information as required.

The schedule for revising and/or updating the index will occur annually on June 30 of each year)).

(2) Information on obtaining or viewing the department's index ((should be directed to)) can be obtained from the public records officer at the department's headquarters office located at: Department of Agriculture, 1111 Washington Street, SE, P.O. Box 42560, Olympia, Washington 98504-2560.

[Statutory Authority: Chapters 42.17 and 43.23 RCW. 96-14-086, 16-06-225, filed 7/2/96, effective 8/2/96.]


NEW SECTION
WAC 16-06-250   Processing of public records requests -- Electronic records.   (1) Requesting electronic records: The process for requesting electronic public records is the same as for requesting paper public records.

(2) Providing electronic records:

(a) The department has the discretion to determine whether to provide records electronically or in paper form.

(b) When a requestor requests records in an electronic format, the public records officer will endeavor to provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the department and is generally commercially available, or in a format that is reasonably translatable from the format in which the department keeps the record.

(c) When electronic records require redaction, or are contained in a proprietary data base, or otherwise cannot be reasonably provided in an electronic format, the department will provide paper copies of the records to the requestor.

(3) Customized access to data bases: With the consent of the requestor, the department may provide customized access under RCW 43.105.280 if the record is not reasonably locatable or not reasonably translatable into the format requested. The department may charge a fee consistent with RCW 43.105.280 for customized access.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 16-06-170 For assistance with disclosure of agency documents, you may contact a public records designee.
WAC 16-06-175 You may also contact an agency public records coordinator for assistance.
WAC 16-06-195 Disclosure procedure.
WAC 16-06-215 Qualifications on nondisclosure.
WAC 16-06-230 Interagency disclosure.
WAC 16-06-235 Request for public records disclosure form.

Washington State Code Reviser's Office