WSR 10-17-018

PROPOSED RULES

OFFICE OF STATE AUDITOR


[ Filed August 6, 2010, 9:38 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 10-13-146.

Title of Rule and Other Identifying Information: Chapter 48-21 WAC, Local audit costs appeal; chapter 48-13 WAC, Access to public records; WAC 48-16-010 Agency activities exempt; and repeal all sections in chapters 48-12 and 48-20 WAC.

Hearing Location(s): Sunset Building, 3200 Capitol Boulevard, Tumwater, WA 98501, on September 29, 2010, at 9:00.

Date of Intended Adoption: October 5, 2010.

Submit Written Comments to: Jan Jutte, Director of Legal Affairs, P.O. Box 40021, Olympia, WA 98504-0021, e-mail Juttej@sao.wa.gov, fax (360) 753-0646, by September 25, 2010.

Assistance for Persons with Disabilities: Contact Jeana Gillis by phone TTY (800) 833-6388 or (360) 902-0374.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Repeal outdated WACs covering local government audit costs appeal and access to public records and adopt new WACs covering those topics and revise office WAC covering exempt activities under the State Environmental Policy Act.

Reasons Supporting Proposal: Current WACs do not reflect current office policies and procedures, or reference laws no longer in effect.

Statutory Authority for Adoption: RCW 42.56.070, 43.21C.120, and 43.09.281.

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

Name of Proponent: State auditor's office, governmental.

Name of Agency Personnel Responsible for Drafting: Brandt Orme, Sunset Building, 3200 Capitol Boulevard, Tumwater, (360) 725-5580; Implementation and Enforcement: Jan Jutte, Insurance Building, 302 Syd Snyder Avenue S.W., Olympia, (360) 902-0360.

No small business economic impact statement has been prepared under chapter 19.85 RCW. No impact to business community, thus no impact to small business.

A cost-benefit analysis is not required under RCW 34.05.328. State auditor's office is not an agency subject to RCW 34.05.328.

August 2, 2010

Jan M. Jutte

Director of Legal Affairs

OTS-3470.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 48-12-010 Purpose.
WAC 48-12-020 Definitions.
WAC 48-12-030 Description of central and field organization of office of state auditor.
WAC 48-12-040 Operations and procedures.
WAC 48-12-050 Public records available.
WAC 48-12-060 Public records officer.
WAC 48-12-070 Office hours.
WAC 48-12-080 Requests for public records.
WAC 48-12-090 Copying.
WAC 48-12-100 Exemptions.
WAC 48-12-110 Review of denials of public records requests.
WAC 48-12-120 Protection of public records.
WAC 48-12-130 Records index.
WAC 48-12-140 Communication with agency.
WAC 48-12-150 Adoption of form.
WAC 48-12-990 Appendix No. 1 -- Form -- Request for public record.

OTS-3469.2

Chapter 48-13 WAC

ACCESS TO PUBLIC RECORDS


NEW SECTION

WAC 48-13-010   Authority and purpose.   (1) RCW 42.56.070(1) requires each agency to make available for inspection and copying nonexempt "public records" in accordance with published rules. The act defines "public record" to include any "writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained" by the agency. RCW 42.56.070(2) requires each agency to set forth "for informational purposes" every law, in addition to the Public Records Act, that exempts or prohibits the disclosure of public records held by that agency.

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

(3) The purpose of the act is to provide the public full access to information concerning the conduct of government, mindful of individuals' privacy rights and the desirability of the efficient administration of government. The act and these rules will be interpreted in favor of disclosure. In carrying out its responsibilities under the act, the state auditor's office will be guided by the provisions of the act describing its purposes and interpretation.

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NEW SECTION

WAC 48-13-020   Agency description -- Contact information -- Public records officer.   (1) The state auditor's office has the constitutional responsibility for auditing state government and all municipal corporations in Washington state. The administrative office of the state auditor's office and its staff are located at: 302 Sid Snyder Ave. S.E., Room 200, Olympia, WA.

(2) Any person wishing to request access to public records of the state auditor's office, or seeking assistance in making such a request should contact the public records officer of the state auditor's office:


Public Records Officer

State Auditor's Office

P.O. Box 40031

Olympia, WA 98504

360-586-3105

e-mail: publicrecords@sao.wa.gov


Information and public records are also available at the state auditor's office web site at http://www.sao.wa.gov. Requestors are encouraged to view the information and documents available on the web site prior to contacting the records officer.

(3) The public records officer will oversee compliance with the act but another state auditor's office staff member may process the request. The public records officer or designee will provide fullest assistance to requestors, pursuant to this chapter, and prevent fulfilling public records requests from causing excessive interference with essential functions of the state auditor's office.

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NEW SECTION

WAC 48-13-030   Availability of public records.   (1) Hours for inspection of records. Public records are available for inspection and copying by appointment during normal business hours of the state auditor's office, Monday through Friday, 9:00 a.m. to 4:00 p.m., excluding legal holidays. Original records must be inspected at the offices of the state auditor's office. A requestor shall not take state auditor's office records from state auditor's offices without the permission of the public records officer or designee.

(2) Records index and records available on-line. An index of public records is available for use by members of the public. The index may be accessed on-line at http://www.sao.wa.gov. A variety of records is also available on the state auditor's office web site. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

(3) Making a request for public records.

(a) Any person wishing to inspect or obtain copies of public records of the state auditor's office should make the request in writing by letter, fax, or e-mail addressed to the public records officer or using the office's web site form located at: http://www.sao.wa.gov. Records requests should include the following information:

Name of requestor;

Address of requestor;

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

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

The date and time of day of the request.

(b) If the requestor wishes to retain photocopies or electronic versions of nonelectronic records instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records. A deposit may be required prior to the office's collection of the records requested. Pursuant to WAC 48-13-070, photocopies and scanned copies will be provided at ten cents per page.

(c) The public records officer or designee may accept requests for public records that contain the above information by telephone or in person. If the public records officer or designee accepts such a request, he or she will confirm receipt of the information and the substance of the request in writing.

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NEW SECTION

WAC 48-13-040   Processing of public records requests -- General.   (1) Order of response. The public records officer or designee 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 or copying; or

(b) If copies or scanned documents are requested and terms of payment are met, 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 or designee may revise the estimate of when records will be available; or

(e) Deny the request.

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

(4) Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer 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.

(5) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the state auditor's office 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.

(6) Inspection of records.

(a) Consistent with other demands, the state auditor's office 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 state auditor's office notification to him or her that the records are available for inspection. 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 state auditor's office 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.

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

(8) Providing records in installments. When the request is for a large number of records, the public records officer or designee 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.

(9) Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the public records officer or designee will indicate that the state auditor's office has completed a diligent search for the requested records and made any located nonexempt records available for inspection.

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

(11) Later discovered documents. If, after the state auditor's office has informed the requestor that it has provided all available records, the state auditor's office 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.

(12) Detailed policy can be found on office web site at http://www.sao.wa.gov.

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NEW SECTION

WAC 48-13-050   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. 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.

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NEW SECTION

WAC 48-13-060   Exemptions.   (1) The Public Records Act 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 state auditor's office for inspection and copying:

RCW 42.40.030, state employee whistleblower protection.

RCW 42.41.030, local government whistleblower protection.

RCW 43.09.186, toll-free efficiency hotline.

(2) The state auditor's office is prohibited by statute from disclosing lists of individuals for commercial purposes.

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NEW SECTION

WAC 48-13-070   Costs of providing copies of public records.   (1) Costs for paper copies. There is no fee for inspecting public records. A requestor may obtain standard black and white photocopies for ten cents per page when the page count exceeds one hundred pages. Copies in color or larger-sized documents cost will be based on the actual cost to reproduce them at the time of the request.

Before beginning to make the copies, the public records officer or designee 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 or designee may also require the payment of the remainder of the copying costs before providing all the records, or the payment of the costs of copying an installment before providing that installment. The state auditor's office will not charge sales tax when it makes copies of public records.

(2) Costs for electronic records. The cost of electronic copies of records shall be free for information on a CD-ROM when the information already exists in electronic format and it only has to be copied to a CD. The cost of scanning existing office paper or other nonelectronic records is ten cents per page when the page count exceeds one hundred pages. There will be no charge for e-mailing electronic records to a requestor, unless another cost applies such as a scanning fee.

(3) Costs of mailing. The state auditor's office may also charge actual costs of mailing, including the cost of the shipping container for requests exceeding one hundred pages.

(4) Payment. Payment may be made by cash, check, or money order to the state auditor's office.

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NEW SECTION

WAC 48-13-080   Review of denials of public records.   (1) Petition for internal administrative review of denial of access. Any person who objects to the initial denial or partial denial of a records request may petition in writing (including e-mail) 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 public records officer or designee denying the request.

(2) Consideration of petition for review. The public records officer shall promptly provide the petition and any other relevant information to the director of legal affairs. The petition will be affirmed or reversed within five business days following the state auditor's office receipt of the petition, or within such other time as the state auditor's office and the requestor mutually agree.

(3) Review by the attorney general's office. Pursuant to RCW 42.56.530, if the state auditor's office 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 requests pursuant to RCW 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.

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OTS-3413.1


AMENDATORY SECTION(Amending Order 76-3, filed 10/1/76)

WAC 48-16-010   Agency activities exempt.   The activities of the state auditor's office ((as they existed on December 12, 1975, have been exempted by the council on environmental policy in WAC 197-10-175 (12)(b). All authorized activities of the state auditor's office have been reviewed and found to fall within the exempted category)) has reviewed its authorized activities and found them all to be exempt pursuant to TITLE 197 WAC. This ((regulation)) section is adopted ((in conformance)) for compliance with ((WAC 197-10-800(4))) the State Environmental Policy Act, chapter 43.21C RCW.

[Order 76-3, 48-16-010, filed 10/1/76.]

OTS-3471.1


REPEALER
     The following chapter of the Washington Administrative Code is repealed:
WAC 48-20-010 Definitions.
WAC 48-20-020 Notification to chief examiner.
WAC 48-20-030 Response of chief examiner.
WAC 48-20-040 Appeal to internal appeals board.
WAC 48-20-050 Appeal to external appeals board.
WAC 48-20-060 External appeals board -- Membership.
WAC 48-20-070 External appeals board review.
WAC 48-20-080 Review and final decision by state auditor.
WAC 48-20-090 Failure to follow procedure -- Waiver.
WAC 48-20-100 Appeal board administrative costs.

OTS-3468.1

Chapter 48-21 WAC

LOCAL AUDIT COSTS APPEAL


NEW SECTION
WAC 48-21-010   Definitions.   "Local government" includes any municipal corporation, taxing district, or other governmental unit subject to audit by the state auditor's office, acting through its legally constituted legislative body or its designee.

"Local government association" means any generally recognized association or organization whose membership consists exclusively or principally of local government units or their officers.

"Officers of a local government association" includes any person serving as an elected officer of a local government association or any person employed by a local government association as its executive director or any person with duties equivalent to those of an executive director.

"Writing" means handwriting, typewriting, printing, and every other means of commonly understood written recording, including letters, facsimiles or electronic mail.

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NEW SECTION
WAC 48-21-020   Notification to director of audit.   A local government which disagrees with a bill for services issued to it shall notify the director of audit in writing within fourteen days after receipt of the bill. The writing shall include the local government's reasons for challenging the bill and any other information the local government deems pertinent.

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NEW SECTION
WAC 48-21-030   Response of director of audit.   The director of audit shall review any bill challenged by a local government, together with the reasons for the challenge. Within ten days of receipt of notification from the local government, the director of audit shall respond in writing to the local government, either reaffirming the bill or modifying it, and stating the reasons for his action.

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NEW SECTION
WAC 48-21-040   Appeal to internal appeals board.   Within ten days after receiving the director of audit's written response, the local government may appeal the matter to the internal appeals board by writing directed to the director of audit. The internal appeals board shall consist of the chief of staff and two deputy state auditors designated by the state auditor, neither of whom shall have direct responsibility for the conduct of audits. The internal appeals board shall review the matter and may reaffirm or modify the disputed bill. Within ten days of the appeal, the internal appeals board shall issue written findings and mail them to the local government.

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NEW SECTION
WAC 48-21-050   Appeal to external appeals board.   Within ten days of receipt of the written findings of the internal appeals board, a local government not satisfied with the findings may appeal to an external appeals board by addressing a written notice to the director of audit. The written notice shall specify the grounds for appeal and shall designate the person selected by the local government to serve on the external appeals board.

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NEW SECTION
WAC 48-21-060   External appeals board -- Membership.   The external appeals board shall consist of three officers of local government associations, one selected by the local government at the time of its appeal, one selected by the director of audit after receipt of the notice of appeal, and the third to be selected by the other two members.

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NEW SECTION
WAC 48-21-070   External appeals board review.   The external appeals board shall review the challenged bill, together with any other pertinent material furnished by the local government and the state auditor's office. Within ten days after its selection, the external appeals board shall submit written findings and recommendations to the state auditor and to the local government.

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NEW SECTION
WAC 48-21-080   Review and final decision by state auditor.   Within ten days after receipt of the findings and recommendation of the external appeals board, the state auditor shall issue a final written decision accepting, rejecting, or modifying the recommendation of the appeals board. The final decision shall be delivered to the local government, which shall promptly pay any charges rendered in the final decision.

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NEW SECTION
WAC 48-21-090   Failure to follow procedure -- Waiver.   Any local government which fails to follow the appeal procedures outlined in this chapter will be deemed to have waived its appeal, and shall promptly pay any bill submitted by the state auditor.

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NEW SECTION
WAC 48-21-100   Appeal board administrative costs.   The office of the state auditor will provide facilities, clerical staff, and necessary expenses for appeals boards selected pursuant to this chapter.

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Washington State Code Reviser's Office