Original Notice.

     Preproposal statement of inquiry was filed as WSR 11-11-074.

     Title of Rule and Other Identifying Information: The environmental and land use hearings office (ELUHO), the successor agency resulting from the administrative consolidation of environmental hearings office (EHO) and the growth management hearing[s] board (GMHB), is required by RCW 42.56.040 to have public records rules for the agency. These rules are proposed for adoption as chapter 198-14 WAC.

     Hearing Location(s): ELUHO, 1111 Israel Road S.W., Tumwater, WA 98501, on December 7, 2011, at 2:00 p.m.

     Date of Intended Adoption: January 10, 2012.

     Submit Written Comments to: Kay Brown, P.O. Box 40903, Tumwater, WA 98501, e-mail Kayb@ELUHO.Wa.Gov., fax (360) 586-2253, by December 6, 2011.

     Assistance for Persons with Disabilities: Contact Robyn Bryant by phone (360) 664-9166.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Proposed new chapter 198-14 WAC, will provide public records rules for the ELUHO agency as required by RCW 42.56.040. The changes are necessary to reflect the legislatively driven administrative consolidation of the EHO and GMHB into the ELUHO, and the legislative direction that all agencies adopt public records procedures.

     Statutory Authority for Adoption: RCW 42.56.040, 43.21B.005, 43.21B.090, 36.70A.270(7).

     Statute Being Implemented: RCW 42.56.040, 43.21B.005.

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

     Name of Proponent: ELUHO, governmental.

     Name of Agency Personnel Responsible for Drafting: Kay Brown, ELUHO, (360) 664-9160; Implementation and Enforcement: Kathleen Mix, ELUHO, (360) 664-9160.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. No statement is required for adoption of rules described in RCW 34.05.310(4). These proposed rules and rule amendments meet the requirements of RCW 34.05.310 (4)(b) and (e).

     A cost-benefit analysis is not required under RCW 34.05.328. These rules and rule amendments are exempt from the requirement under RCW 34.05.328 based on RCW 34.05.328 (5)(b)(ii), (iv), (v).

November 1, 2011

Kathleen D. Mix

Agency Director

OTS-4436.1

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     (2) "Public records" includes 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 any state or local agency regardless of physical form or characteristics.

     (3) "Public records officer" means the administrative manager of ELUHO. The public records officer serves as the point of contact for members of the public and oversees compliance with the act but, may designate another ELUHO employee to serve as the point of contact for members of the public and to process requests for public records.

     (4) "Writing" means handwriting, typewriting, printing, photostatting, 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.

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     (2) Any person wishing to request access to public records of ELUHO, or seeking assistance in making such a request, shall contact the public records officer of ELUHO, or the board maintaining such records at the offices of ELUHO. Information identifying ELUHO's public records officer and the specific physical and mailing addresses for the agency is available on ELUHO's web site: www.eluho.wa.gov.

     The ELUHO office is located at:

     1111 Israel Road S.W.

     Tumwater, WA 98501

     Phone: 360-664-9160

     (3) ELUHO, through its public records officer or designee(s), will provide the "fullest assistance" to requestors; create and maintain an index to public records of ELUHO for use by the public and ELUHO officials; ensure that public records are protected from damage or disorganization; and ensure that responses to public records requests do not cause excessive interference with essential functions of the ELUHO.

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     (2) Records index. An index of public records is available for use by members of the public, including final orders, declaratory orders, interpretive statements, and statements of policy. The index may be accessed on-line at www.eluho.wa.gov.

     (3) Organization of records. ELUHO and the boards of the ELUHO will maintain records in a reasonably organized manner. ELUHO and the boards will take reasonable actions to protect records from damage and disorganization. A requestor shall not take records from the offices at which the records are maintained without the permission of the public records officer or designee. Many records are available on the ELUHO web site at www.eluho.wa.gov. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

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     (a) Name of requestor;

     (b) Address of requestor;

     (c) Other contact information, including telephone number and an e-mail address, if available;

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

     (e) The date and time of the request.

     (2) 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 pay a deposit as provided for in WAC 198-14-090.

     (3) Forms are available for use by requestors at the office of ELUHO and on-line at www.eluho.wa.gov.

     (4) The public records officer or designee may accept requests for public records by telephone or in person, if the request contains the above information. 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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     (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;

     (b) If copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are 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 or in writing. The public records officer or designee may revise the estimate of when records will be available; or

     (e) Deny the request and provide a written statement specifying the reasons for denial.

     (3) Failure to respond. If ELUHO does not respond in writing within five business days of receipt of the request for disclosure, the requestor is encouraged to contact the public records officer to inquire into the status of the public records request.

     (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 ELUHO believes that a record is exempt from disclosure and should be withheld, the public records officer will state the specific exemption relied upon and provide a brief explanation of why the record or a portion of the record is being withheld from disclosure. 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 the basis for redaction.

     (6) Inspection of records.

     (a) Consistent with other demands, ELUHO 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. Access to file cabinets, shelves, or storage areas is restricted to ELUHO employees, who shall be present during the inspection. 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 ELUHO's notification to him or her that the records are available for inspection or copying. ELUHO 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, ELUHO 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 may 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 that have been made available for inspection, 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 ELUHO 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 ELUHO has closed the request.

     (11) Later discovered documents. If, after ELUHO has informed the requestor that it has provided all available records, ELUHO 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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     (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 ELUHO 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 RCW 43.105.280 and WAC 198-14-090(2).

     (3) Customized access to data bases. With the consent of the requestor, the agency may provide customized access to an agency data base under RCW 43.105.280 if the record is not reasonably locatable or not reasonably translatable into the format requested. ELUHO may charge a fee consistent with RCW 43.105.280 for such customized access, which may include reasonable charges for staff time necessary to conduct customized searches of the agency data bases.

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     (2) ELUHO incorporates by reference the exemptions to the act including, but not limited to, the following:

     RCW 42.56.230 Personal information;

     RCW 42.56.250 Employment and licensing;

     RCW 42.56.270 Financial, commercial, and proprietary information;

     RCW 42.56.280 Preliminary drafts, notes, recommendations, and intra-agency memorandums;

     RCW 42.56.290 Agency party to controversy;

     RCW 42.56.600 Mediation communications;

     RCW 5.60.060 Attorney client privilege.

     (3) ELUHO is prohibited by statute from disclosing lists of individuals for commercial purposes.

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     (a) There is no fee for inspecting public records. Photocopies of thirty-five pages or more will be charged at fifteen cents per page and, nonstandard copies, including planning or engineering documents, oversized maps, and photographs, will be charged at the actual cost of reproduction. ELUHO may, in its discretion, send records to a commercial copying center for duplication. The requestor is required to pay the actual cost of copying performed by a copying vendor. Actual cost will be charged for manuals and nonprinted materials, such as audio or video tapes or CDs.

     (b) 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. ELUHO 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 the actual cost of medium and preparation, including the actual cost of any necessary scanning. There will be no charge for e-mailing electronic records to a requestor, unless another cost applies, such as a scanning fee. ELUHO may charge a fee consistent with RCW 43.105.280 and WAC 198-14-070(3) for customized access of electronic records.

     (3) Costs of mailing. ELUHO may also charge actual costs of mailing, including the cost of the shipping container.

     (4) Payment. Payment may be made by cash, check, or money order to ELUHO.

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     (2) Judicial review. Any person may obtain court review of denials of public records requests pursuant to RCW 42.56.550, as amended, regardless of any internal administrative appeal. Final agency action, for the purposes of judicial review, shall be deemed completed at the end of the second business day following the denial.

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