WSR 09-07-070

PERMANENT RULES

LIQUOR CONTROL BOARD


[ Filed March 13, 2009, 11:28 a.m. , effective April 13, 2009 ]


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

Purpose: As part of the liquor control board's on-going rules review process, chapter 314-60 WAC has been reviewed for relevance, clarity, and accuracy.

Citation of Existing Rules Affected by this Order: Repealing WAC 314-60-020, 314-60-030, 314-60-050, 314-60-060, 314-60-105, 314-60-120, 314-60-130 and 314-60-140; and amending WAC 314-60-010, 314-60-040, 314-60-070, 314-60-080, 314-60-090, 314-60-100, and 314-60-110.

Statutory Authority for Adoption: RCW 66.08.030, 34.05.220, 42.56.40 [42.56.040].

Adopted under notice filed as WSR 09-03-076 on January 15, 2009.

Changes Other than Editing from Proposed to Adopted Version: WAC 314-60-100(2), a reference to RCW 42.56.070 was added to the language.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 3, Amended 8, Repealed 8.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, Amended 8, Repealed 8.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: March 11, 2009.

Lorraine Lee

Chairman

OTS-1877.5


AMENDATORY SECTION(Amending WSR 94-03-060, filed 1/14/94, effective 2/14/94)

WAC 314-60-010   Purpose -- Washington state liquor control board.   (((1))) The purposes of this chapter ((is)) are to ((comply with the provisions of chapter 42.17 RCW dealing with public records.

(2) The "Washington state liquor control board," pursuant to RCW 66.08.012 and 66.08.014, consists of three members appointed by the governor with the consent of the senate, for terms of six years that are staggered so that an appointment or reappointment is made every two years. The "Washington state liquor control board" shall sometimes hereinafter be referred to as the "board." Where appropriate, the term "board" also refers to the staff and employees of the Washington state liquor control board.)):

(1) Describe the organization of the liquor control board (LCB);

(2) Ensure that LCB complies with laws governing the disclosure (release) of public records; and

(3) Explain how an individual or organization can obtain public records.

[Statutory Authority: RCW 66.08.030. 94-03-060, 314-60-010, filed 1/14/94, effective 2/14/94; Order 56, 314-60-010, filed 5/31/77, effective 7/1/77; Order 22, 314-60-010, filed 4/17/73, effective 5/18/73.]


NEW SECTION
WAC 314-60-015   Agency description -- Contact information -- Public records officer.   (1)(a) The board is an agency created to exercise the police power of the state in administering and enforcing all of the laws and regulations relating to alcoholic beverage control (Title 66 RCW). The board issues licenses to persons who handle liquor; collects taxes imposed on liquor; and distributes and sells spirituous liquor.

(b) The board is responsible for enforcing laws preventing access to tobacco products by persons under the age of eighteen years (chapter 70.155 RCW). The board enforces the tobacco tax laws and the department of revenue administers tobacco tax laws (chapters 82.24 and 82.26 RCW).

(2) The "Washington state liquor control board" or "board" pursuant to RCW 66.08.012 and 66.08.014, consists of three members appointed by the governor with the consent of the senate, for terms of six years that are staggered so that an appointment or reappointment is made every two years. Where appropriate, the term "board" also refers to the staff and employees of the Washington state liquor control board.

(3) The board delegates certain administrative functions to an administrative director appointed by the board.

(4) The Washington state liquor control board is organized into six divisions:

(a) The director's office;

(b) Licensing and regulation;

(c) Enforcement and education;

(d) Administrative services;

(e) Business enterprise; and

(f) Human resources.

(5)(a) The administrative offices of the Washington state liquor control board are located at 3000 Pacific Avenue Southeast, Olympia, Washington 98504-3080.

(b) LCB staff is also located at:

(i) The distribution center, 4401 East Marginal Way South, Seattle, Washington;

(ii) State liquor stores in areas throughout the state; and

(iii) Enforcement offices maintained in major cities throughout the state.

(c) LCB contracts with individuals to sell liquor on commission. These contract liquor stores are located in areas throughout the state.

(d) Exact locations of state liquor stores, contract liquor stores, enforcement offices, and contact number are located on the LCB home page at www.liq.wa.gov.

(6) Any person wishing to access LCB public records should contact the LCB's public records officer:


Public Records Officer

Liquor Control Board

3000 Pacific Avenue Southeast

Olympia, Washington 98504

360-664-1714

Fax 360-664-9689

e-mail publicrecords@liq.wa.gov


Information is also available on the LCB web site at www.liq.wa.gov.

(7) The public records officer will oversee compliance with the act and the implementation of the LCB's rules and regulations regarding release of public records, coordinating the staff of the public records unit and the LCB employees in this regard, and generally coordinating compliance by the LCB with the public records disclosure requirements of chapter 42.56 RCW. The public records officer will provide the "fullest assistance" to requestors; create and maintain for use by the public and LCB officials an index to public records of the LCB; ensure that public records are protected from damage or disorganization; and to prevent public records requests from causing excessive interference with essential functions of the LCB.

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AMENDATORY SECTION(Amending WSR 02-10-006, filed 4/19/02, effective 5/20/02)

WAC 314-60-040   Operations and procedure.   The general course and method by which the operations of the board are channeled and determined are illustrated by the following:

(1) An organizational chart is available from the board's public records office which illustrates the general structure ((and composition)) of the board's operations.

(2) Board procedures relating to hearings involving alleged violations of the liquor act and/or revised rules and regulations of the board are covered in chapter ((314-04)) 314-42 WAC ((and in chapter 314-08 WAC Practice and procedure)).

(a) General information pertaining to formal hearings is available from the board's public records office.

(b) Forms of notice of board action proposing to suspend a liquor license are available from the board's public records office.

(3) Pursuant to the requirements of the Open Public Meetings Act (chapter 42.30 RCW) all determinations and business of the board, except matters which are exempt from the act under RCW 42.30.140, or properly conducted in executive session, pursuant to RCW 42.30.110, will be made and conducted in meetings open to the public. The board holds regular meetings as published with the office of the code reviser per RCW ((43.30.075 [42.30.075])) 42.30.075 and as published on the board's internet site at www.liq.wa.gov. Generally, the ((board's regular meetings are held on Wednesdays. It is the board's intent to hold its regular board meetings on the first and third Wednesdays of the month. Unless notice is otherwise given, meetings of the board will be held at its offices in the board room at 3000 Pacific Avenue Southeast, Olympia, Washington)) board will conduct business at regular meetings on Monday, Tuesday, and Wednesday of each week at a place and time selected by the board and published with the Washington State Register and posted on the liquor control board web site. Occasionally the board may deem it necessary to conduct business on a Thursday and/or Friday, during these occasions, stakeholder notification will occur. For scheduling purposes, it is the board's intent to schedule petitions, take public testimony, take rule making actions, and adopt resolutions at its regular Wednesday board meetings.

[Statutory Authority: RCW 66.08.030, 43.30.070. 02-10-006, 314-60-040, filed 4/19/02, effective 5/20/02. Statutory Authority: RCW 66.08.030 and 66.24.12 [66.08.012]. 99-16-119, 314-60-040, filed 8/4/99, effective 9/4/99. Statutory Authority: RCW 66.08.030. 98-14-003, 314-60-040, filed 6/18/98, effective 7/19/98. Statutory Authority: RCW 66.08.030, 66.08.050 and 42.30.070. 92-14-027, 314-60-040, filed 6/22/92, effective 7/23/92. Statutory Authority: RCW 66.08.030(1). 90-02-109, 314-60-040, filed 1/3/90, effective 2/3/90. Statutory Authority: RCW 66.08.030 and 42.30.070. 82-10-021 (Order 104, Resolution No. 113), 314-60-040, filed 4/28/82. Statutory Authority: RCW 66.08.030. 82-04-030 (Order 97, Resolution No. 106), 314-60-040, filed 1/27/82; Order 56, 314-60-040, filed 5/31/77, effective 7/1/77; Order 22, 314-60-040, filed 4/17/73, effective 5/18/73.]


AMENDATORY SECTION(Amending Order 22, filed 4/17/73, effective 5/18/73)

WAC 314-60-070   ((Office hours.)) Availability of public records.   (1) Hours for inspection of records. Public records ((shall be)) are available for inspection and copying at the main office of the board during ((its customary office)) normal business hours((. For the purpose of this chapter, the customary office hours shall be)) of the LCB, Monday through Friday, from 8 a.m. to ((noon and from 1 p.m. to)) 4 p.m., ((Monday through Friday,)) excluding legal holidays.

(2) Records index. An index of public records is available for use by members of the public, including:

(a) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases.

(b) Those statements of policy and interpretations of policy, statute and the constitution which have been adopted by the agency.

(c) Administrative staff manuals and instructions to staff that affect a member of the public.

(d) Planning policies and goals, and interim and final planning decisions.

(e) Factual staff reports and studies, factual consultant's reports and studies, scientific reports and studies, and any other factual information derived from tests, studies, reports or surveys, whether conducted by public employees or others.

(f) Correspondence, and materials referred to therein, by and with the agency relating to any regulatory, supervisory or enforcement responsibilities of the agency, whereby the agency determines, or opines upon, or is asked to determine or opine upon, the rights of the state, the public, a subdivision of state government, or of any private party.

(3) Organization of records. The LCB will maintain its records in a reasonably organized manner. The LCB will take reasonable actions to protect records from damage and disorganization. A requestor shall not take LCB records from LCB offices without the permission of the public records officer. A variety of records is available on the LCB web site at www.liq.wa.gov. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

[Order 22, 314-60-070, filed 4/17/73, effective 5/18/73.]


AMENDATORY SECTION(Amending WSR 94-03-060, filed 1/14/94, effective 2/14/94)

WAC 314-60-080   Making requests for public records.   ((In accordance with requirements of 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 obtained by members of the public at the main office of the board upon compliance with the following procedures:)) An individual may request a public record orally or in writing. The board encourages that all public record requests be in writing and may be sent via e-mail.

(1) ((A request may be made in writing.)) A form prescribed by the board ((shall be)) is available at its main office. The written request or prescribed form shall be submitted or presented to the public records officer((, or to any member of the board's staff, if the public records officer is not available, at the main office of the board during customary office hours)). The request ((shall)) should include the following information:

(a) The name ((and)), organization, mailing address, telephone number, fax number, and e-mail address of the person requesting the record.

(b) The time of day and calendar date on which the request was received at the main office of the board.

(c) ((The nature of the request.)) A detailed description of the public record being requested.

(d) If the matter requested is referenced within the current index maintained by the board, a reference to the requested record as described.

(e) ((If the requested matter is not identifiable by reference to the board's current index, an appropriate description of the record requested.)) The address where copies of the record are to be mailed, or that the requestor wants to examine the record at the LCB.

(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 appropriately identifying the public record requested.)) If the public records officer accepts a request other than in writing, he or she will confirm receipt of the information and the substance of the request in writing.

(3) If the requestor wishes to have copies of the records made instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records or a deposit. Standard photocopies will be provided at fifteen cents per page. (See WAC 314-60-090.)

(4) When it appears that a request for a record is made by or on behalf of a party to a lawsuit or a controversy to which the board is also a party (or when a request is made by or on behalf of an attorney for a party) the request shall be referred to the assistant attorney general assigned to the board for an appropriate response.

[Statutory Authority: RCW 66.08.030. 94-03-060, 314-60-080, filed 1/14/94, effective 2/14/94; Order 56, 314-60-080, filed 5/31/77, effective 7/1/77; Order 22, 314-60-080, filed 4/17/73, effective 5/18/73.]


NEW SECTION
WAC 314-60-085   Processing public records requests.   (1) The public records officer will process requests in the order allowing 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 will do one or more of the following:

(a) Make the records available for inspection and copying;

(b) If copies are requested and payment of a deposit for copies, if any, is made or terms of payment agreed upon, send the copies to the requestor;

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

(d) If the request is unclear or does not sufficiently identify the requested records, request clarification from the requestor. Such clarification may be requested and provided by telephone. The public records officer may revise the estimate of when records will be available; or

(e) Deny the request.

(3) Protecting the rights of others. If the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, 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.

(4) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the LCB believes that a record is exempt from disclosure and should be withheld, the public records officer will 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 will redact the exempt portions, provide the nonexempt portions, and indicate to the requestor why portions of the record are being redacted.

(5) Inspection of records.

(a) Consistent with other demands, the LCB shall promptly 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. 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 LCB's notification to him or her that the records are available for inspection or copying. The agency will notify the requestor in writing of this requirement and inform the requestor that he or she should 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 LCB 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 can be processed as a new request.

(6) Providing copies of records. After inspection is complete, the public records officer shall make the requested copies or arrange for copying.

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

(8) Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the public records officer will indicate that the LCB has completed a diligent search for the requested records and made any located nonexempt records available for inspection.

(9) 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 will close the request and indicate to the requestor that the LCB has closed the request.

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

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NEW SECTION
WAC 314-60-087   Processing 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. When a requestor requests records in an electronic format, the public records officer will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the agency and is generally commercially available, or in a format that is reasonably translatable from the format in which the agency keeps the record. Costs for providing electronic records are governed by WAC 314-60-090.

(3) Customized access to data bases. With the consent of the requestor, the agency 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 LCB may charge a fee consistent with RCW 43.105.280 for such customized access.

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AMENDATORY SECTION(Amending Order 22, filed 4/17/73, effective 5/18/73)

WAC 314-60-090   ((Copying.)) Costs of providing copies of public records.   (1) No fee shall be charged for the inspection of public records. ((The board will impose a reasonable charge for providing copies of public records and for the use of the board's equipment to copy its public records, such charges will not exceed the amount necessary to reimburse the board for its actual costs incident to such copying.))

(2) After the first one hundred free copies, the board charges one or more of the following fees for copies of public records:

(a) Up to fifteen cents per page for black and white photocopies of a record;

(b) The actual cost of manuals, blueprints, and other nonprinted materials such as CDs, audio tapes, or video tapes;

(c) Up to fifteen cents per page for scanning existing WSLCB paper or other nonelectronic records. There will be no charge for e-mailing electronic records to a requestor, unless a scanning fee applies; and

(d) The cost of postage, when items are mailed. (See RCW 42.56.070.)

[Order 22, 314-60-090, filed 4/17/73, effective 5/18/73.]


AMENDATORY SECTION(Amending Order 56, filed 5/31/77, effective 7/1/77)

WAC 314-60-100   Exemptions.   (1) ((The board reserves the right to determine that a public record requested in accordance with the procedures outlined in WAC 314-60-080 is exempt under the provisions of chapter 42.17 RCW.

(2) In addition, pursuant to chapter 42.17 RCW, the board 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 disclosure of such details would be an invasion of personal privacy protected by chapter 42.17 RCW. The public records officer will fully justify such deletion in writing.

(3) All denials of requests for public records will 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.)) 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. Requestors should be aware of the following exemptions, outside the Public Records Act, that restrict the availability of some documents held by WSLCB for inspection and copying:

(a) Autopsy, post mortem or medical examiner reports. Requests for these records should be referred to the agency which originated the record(s): Coroner's office, medical examiner's office, etc. (RCW 68.50.105)

(b) Claim file information. On any industrial insurance claim. (RCW 51.28.070)

(c) Criminal history reports. Concerning nonconviction data. Law enforcement agency reports should be referred to the agency that originated the report. (RCW 10.97.080)

(d) Crime victims. Files and information. (RCW 7.68.140)

(e) Individual purchases. All records whatsoever of the board showing purchases of liquor by any individual or establishment. (RCW 66.16.090)

(f) Medical records and data. Medical records, drug records, accident victims and other persons to which LCB has access. (RCW 42.56.360(2) and chapter 70.02 RCW)

(g) Social Security numbers. (RCW 42.56.250(3) and 42 U.S.C. Section 405 (c)(2)(C)(vii)(1))

(h) Trade secrets. As defined in RCW 19.108.010, including blueprints, diagrams, drawings, formulas, photos, etc., requested to be held confidential by the affected person. Should be labeled "RESTRICTED TRADE INFORMATION." (RCW 39.10.470(2) and 49.17.200)

(i) Special order requests and records of purchases by any person or persons, including spirits, beer, and wine restaurant licensees. (See RCW 66.16.090.)

(j) Financial or proprietary information supplied to the board by a domestic winery, brewery, or microbrewery, acting as its own distributor, or certificate of approval holder with a direct shipping to Washington retailer endorsement, containing the identity and amount of beer or wine sold directly to licensed Washington retailers. (See RCW 66.24.206 (1)(a), 66.24.270 (2)(a), and 42.56.270.)

(k) Financial or proprietary information supplied to the board by a licensed Washington liquor retailer containing the identity and amount of beer or wine purchased directly from a domestic winery, brewery, microbrewery, or a certificate of approval holder with a direct shipping to Washington retailer endorsement. (See RCW 66.24.210, 66.24.290, and 42.56.270.)

(2) The WSLCB is prohibited by statute from disclosing lists of individuals for commercial purposes. (See RCW 42.56.070.)

(3) Before beginning to make the copies, the public records officer may require a deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor. The public records officer 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 LCB will not charge sales tax when it makes copies of public records.

[Order 56, 314-60-100, filed 5/31/77, effective 7/1/77; Order 22, 314-60-100, filed 4/17/73, effective 5/18/73.]


AMENDATORY SECTION(Amending WSR 94-03-060, filed 1/14/94, effective 2/14/94)

WAC 314-60-110   Review of denials of public records requests.   (1) Any person who objects to the 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 shall specifically refer to the written statement by the public records ((officer or other)) staff member which constituted or accompanied the denial. Send your written petition for review to:


Public Records Officer, Public Records Unit

P.O. Box 43080

Olympia, Washington 98504-3080

360-664-1714

jdk@liq.wa.gov


(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 ((board chairman, or in his absence, a member of the board)) administrative director. The ((board chairman or member, as the case may be,)) administrative director shall immediately consider the matter and either affirm or reverse such denial ((or call a special meeting of the board 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 LCB's receipt of the request for review of the original denial, or within such other time as the LCB and the requestor mutually agree to.

(3) ((Administrative remedies shall not be considered exhausted until the board has returned the petition with a decision or until the close of the second business day following denial of inspection, whichever first occurs.)) If the LCB 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) Judicial review. Any person may obtain court review of denials of public records request.

[Statutory Authority: RCW 66.08.030. 94-03-060, 314-60-110, filed 1/14/94, effective 2/14/94; Order 22, 314-60-110, filed 4/17/73, effective 5/18/73.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 314-60-020 Definitions -- Public records -- Writing.
WAC 314-60-030 Description of central and field organization of Washington state liquor control board.
WAC 314-60-050 Public records available.
WAC 314-60-060 Public records officer.
WAC 314-60-105 General guidelines -- Exempt records.
WAC 314-60-120 Protection of public records.
WAC 314-60-130 Records index.
WAC 314-60-140 Communications and submissions relating to public records.

Washington State Code Reviser's Office