WSR 11-23-166

PROPOSED RULES

OFFICE OF

INSURANCE COMMISSIONER

[ Insurance Commissioner Matter No. R 2011-15 -- Filed November 22, 2011, 3:22 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 11-16-069.

Title of Rule and Other Identifying Information: Chapter 284-03 WAC, Public records.

Hearing Location(s): OIC Tumwater Office, Training Room 120, 5000 Capitol Building, Tumwater, WA, http://www.insurance.wa.gov/about/directions.shtml, on January 3, 2011 [2012], at 10:00 a.m.

Date of Intended Adoption: January 9, 2011 [2012].

Submit Written Comments to: Kacy Scott, P.O. Box 40258, Olympia, WA 98504-0258, e-mail Kacys@oic.wa.gov, fax (360) 586-3109, by January 3, 2011 [2012].

Assistance for Persons with Disabilities: Contact Lorrie [Lorie] Villaflores at TTY (360) 586-0241 or (360) 725-7087.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: RCW 42.56.040 requires each agency to adopt separate procedures for requesters to gain access to information. The current rules were last amended in 2004. The current rules do not reflect changes in statutes and the office of insurance commissioner (OIC) processes. These proposed rules improve clarity and make it easier for requesters to understand OIC procedures regarding access to public records.

Statutory Authority for Adoption: RCW 48.02.060, 42.56.040.

Statute Being Implemented: Chapter 42.56 RCW.

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

Name of Proponent: Mike Kreidler, insurance commissioner, governmental.

Name of Agency Personnel Responsible for Drafting: Kacy Scott, P.O. Box 40255, Olympia, WA 98508-0258 [98504-0255], (360) 725-7041; Implementation: Eric Mark, P.O. Box 40255, Olympia, WA 98504-0258 [98504-0255], (360) 725-7003; and Enforcement: Carol Sureau, P.O. Box 40255, Olympia, WA 98504-0258 [98504-0255], (360) 725-7050.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These proposed regulations impose no costs on businesses regulated by the OIC.

A cost-benefit analysis is not required under RCW 34.05.328. This proposal is not a significant legislative rule for the purposes of RCW 34.05.328.

November 22, 2011

Mike Kreidler

Insurance Commissioner

OTS-4448.2


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-005   ((What is a public record?)) Authority and purpose.   (("Public record" is defined in RCW 42.17.020. Public records include any written or recorded communication containing information relating to the conduct of the OIC or the performance of any governmental or proprietary function prepared, owned, used, or retained by the OIC.)) (1) The purpose of these rules is to establish the procedures the office of the insurance commissioner (OIC) 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 OIC and establish processes for both requestors and OIC staff that are designed to best assist members of the public in obtaining such access.

(2) 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 OIC will be guided by the provisions of the act describing its purposes and interpretation.

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-005, filed 7/21/04, effective 8/21/04.]


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-010   ((Who should I contact about a public record request?)) Agency description -- Contact information -- Public records manager.   ((The public records officer is in charge of all records maintained by the office of the insurance commissioner (OIC). This includes records at any office in the state maintained by the insurance commissioner. The public records officer is responsible for overseeing the release of public records, coordinating OIC public disclosure staff, and maintaining the records indexes.)) (1) The OIC protects consumers, the public trust, and our state's economy through fair and efficient regulation of the insurance industry. The OIC's central office is located at Tumwater, Washington. The OIC has field offices in Seattle and Spokane.

(2) Any person wishing to request access to public records of the OIC, or seeking assistance in making such a request should contact the OIC public records manager at:


Public Records Manager

Office of the Insurance Commissioner

5000 Capitol Boulevard S.E.

Tumwater, WA 98501

pdr@oic.wa.gov

360-725-7003

fax 360-664-2782


Information is also available at the insurance commissioner's web site at www.insurance.wa.gov.

(3) The public records manager will oversee compliance with the act but other OIC staff members may process the request. Therefore, these rules will refer to the public records manager "or designee." The public records manager or designee and agency staff will provide the "fullest assistance" to requestors, create and maintain for use by the public an index to public records of the OIC, ensure that public records are protected from damage or disorganization, and prevent fulfilling public records requests from causing excessive interference with essential functions of the agency.

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-010, filed 7/21/04, effective 8/21/04; Order R-75-1, 284-03-010, filed 5/19/75.]


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-015   ((How do I make a public record request?)) Availability of public records.   ((Public record requests must be made in writing. The OIC accepts written public record requests made in person or sent by e-mail, fax, or mail. Requests will be accepted either:

(1) On an OIC Public Disclosure Request form. The forms are available on the OIC web site or by contacting the public records officer; or

(2) If the OIC form is not used, the public record request should be in writing and include the following information:

(a) The name of the person requesting the record;

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

(c) A sufficient description of the record requested; and

(d) If the information you are requesting may include a list of individuals, a statement that the list will not be used for commercial purposes.)) (1) Hours for inspection of records. Public records are available for inspection and copying during normal business hours of the OIC, Monday through Friday, 8:00 a.m. to 5:00 p.m. (excluding legal holidays). Records must be inspected at the offices of the OIC.

(2) Records index. An index for categories of public records is available for use by members of the public upon request to the public records manager.

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

(4) Making a request for public records.

(a) Any person wishing to inspect or copy public records of the OIC should make the request in writing on the agency request form, by letter, fax, or e-mail addressed to the public records manager and should include the following information:

(i) Name of requestor;

(ii) Address of requestor;

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

(iv) Identification of the public records adequate for the public records manager or designee to locate the records.

(b) A form is available for use by requestors. The form is available either on the OIC's web site: www.insurance.wa.gov or by contacting the public records manager by e-mail at pdr@oic.wa.gov or by phone at 360-725-7003;

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

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-015, filed 7/21/04, effective 8/21/04.]


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-020   ((What records indexes are available?)) Retention of records.   ((The OIC does not maintain or have custody of all agency records. Historical records are sent to the secretary of the state's archives division. The OIC maintains a current index providing identifying information regarding OIC public records. The index is available to all persons under the same rules and on the same conditions as are applied to public records available for inspection. The records are indexed:

(1) By appropriate names;

(2) By calendar year;

(3) By topic; or

(4) A combination of the above methods, as appropriate.)) The retention and lawful destruction of OIC records are governed by the retention schedules approved by the state records committee. The most current version of the state government general records retention schedule can be found on the secretary of state's web site www.sos.wa.gov. Retention schedules specific to the OIC are available from the public records manager upon request.

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-020, filed 7/21/04, effective 8/21/04; Order R-75-1, 284-03-020, filed 5/19/75.]


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-025   ((Is the OIC required to create public records for me?)) Processing of public records requests -- General.   ((The Public Disclosure Act (RCW 42.17.250 through 42.17.348) requires access to existing, identifiable public records in an agency's possession at the time of the request (see RCW 42.17.270). The OIC is not required to collect or organize data to create a public record that does not exist at the time of the public record request.)) (1) Providing "fullest assistance." The OIC is charged by statute with adopting rules which provide for how it will "provide full access to public records," "protect records from damage or disorganization," "prevent excessive interference with other essential functions of the agency," provide "fullest assistance" to requestors, and provide the "most timely possible action" on public records requests. The public records manager 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 manager will do one or more of the following:

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

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

(c) 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 manager or designee may revise the estimate of when records will be available; or

(d) Deny the request.

(3) Lack of acknowledgment. If the OIC does not respond in writing within five business days of receipt of the request for disclosure, the requestor should consider contacting the public records manager 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 manager 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) No requirement to create record. The Public Records Act requires the OIC to provide access to existing, identifiable public records in the agency's possession. There is no requirement for the agency to gather and/or organize records to create a public record that does not exist at the time of the request.

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

(7) Providing records in installments. When the request is for a large number of records, the public records manager 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 manager or designee may stop searching for the remaining records and close the request.

(8) Closing withdrawn or abandoned request. When the requestor either withdraws the request or fails to fulfill his or her obligations, the public records manager will close the request and indicate to the requestor that the OIC has closed the request.

(9) Later discovered documents. If, after the OIC has informed the requestor that it has provided all available records, the agency 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.

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-025, filed 7/21/04, effective 8/21/04.]


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-030   ((How will the OIC respond to my public record request?)) Exemptions.   (((1) For purposes of this chapter, the functions, organization and administration of the office relating to insurance matters shall be as set forth in chapter 284-02 WAC.

Within five business days after receiving a request, the OIC will either:

(a) Provide the record(s);

(b) Acknowledge your request and give you a reasonable estimate of how long the agency will take to provide records. If your request is not clear, the OIC may ask you for more information (see WAC 284-03-035); or

(c) Deny all or part of the request in writing, with reasons for the denial (see WAC 284-03-040 and 284-03-045). The explanation will include the law the OIC relied upon in its denial. Every denial will be sent to the public records officer for review as required by RCW 42.17.320.

(2) At his or her discretion, the public records officer may send the requested records to you by e-mail, fax, or mail. The records may be delivered on computer or compact disks, or by use of other methods of transmittal or storage.)) (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 found specifically in the insurance code (Title 48 RCW), that restrict the availability of some documents held by the OIC for inspection and copying:

(a) Medical malpractice - Closed claim reports - Annual reports, RCW 48.140.040 and 48.140.050.

(b) Confidentiality of documents, materials, or other information, RCW 48.02.065.

(c) Insurer's reports, RCW 48.05.510 through 48.05.535.

(d) Insurance fraud, RCW 48.30A.045 through 48.30A.065 and 48.135.060.

(e) Confidential proprietary and trade secret information, RCW 48.31C.020 through 48.31C.050 and 48.31C.070.

(f) Material acquisitions or disposition information, RCW 48.43.200, 48.44.530 through 48.44.555, and 48.46.600 through 48.46.625.

(g) Service contract provider's annual reports, RCW 48.110.040.

(h) Statistical summaries, RCW 48.140.040.

(2) The OIC is prohibited by statute from disclosing lists of individuals for commercial purposes.

This list is for informational purposes only and a failure to list an exemption shall not affect the efficacy of any exemption.

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-030, filed 7/21/04, effective 8/21/04; Order R-75-1, 234-03-030 (codified as WAC 284-03-030), filed 5/19/75.]


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-035   ((Why might the OIC need to extend the time to respond to a public record request?)) Agency rules for copy charges.   ((The OIC may need to extend the time to respond to a public record request to:

(1) Locate and gather the information requested;

(2) Notify an individual or organization affected by the request;

(3) Determine whether the information requested is exempt from disclosure and whether all or part of the public record requested can be released; or

(4) Contact you to clarify the intent, scope or specifics of the request. If you fail to clarify the request, the OIC may not have to respond to your request.)) (1) No fees for costs of inspection. There is no fee for inspecting public records held by the OIC.

(2) Standard photocopy charges. Unless otherwise requested, the OIC provides electronic copies of responsive documents in a portable document format (pdf). A requestor may obtain standard 8.5 x 11, black and white photocopies of responsive documents. The OIC will not charge a requestor for electronic copies, or for paper copies of fewer than one hundred pages. For copy requests of one hundred pages or more, the OIC will charge three dollars and fifty cents for the first one hundred and seventeen cents for each additional page. A statement of the factors and the manner used to determine this charge is available from the public records manager.

(3) Use of outside vendor. The OIC may use an outside vendor for nonstandard copies or for voluminous requests if an outside vendor can make copies more quickly and less expensively than the OIC. In the event an outside vendor is used, the requestor may be charged the actual costs billed by the vendor.

(4) Costs of mailing. The OIC may also charge the requestor for the actual costs of mailing, including the cost of the shipping container.

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-035, filed 7/21/04, effective 8/21/04.]


AMENDATORY SECTION(Amending Matter No. R 2003-10, filed 7/21/04, effective 8/21/04)

WAC 284-03-040   ((What happens if the public record I requested is exempt from disclosure?)) Review of denials of public records.   ((If the OIC determines that a record is exempt from disclosure, you will be informed in writing of the specific exemption authorizing the OIC to withhold the record.)) (1) Petition for internal administrative review of denial of access. Any requestor who objects to the initial denial or partial denial of a records request may petition in writing (including e-mail) to the public records manager for a review of that decision. The petition should include a copy of the OIC denial, or reasonably identify the written statement by the public records manager or designee denying the request.

(2) Review by the attorney general's office. If the OIC 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.

(3) Judicial review. Any requestor may obtain court review of denials of public records requests at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.

[Statutory Authority: RCW 48.02.060, 48.17.250, 48.17.300, 70.02.050 and 42.17.250. 04-15-157 (Matter No. R 2003-10), 284-03-040, filed 7/21/04, effective 8/21/04; Order R-75-1, 284-03-040, filed 5/19/75.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 284-03-045 What happens if only part of the record I requested is exempt?
WAC 284-03-050 Will the OIC review the denial of my request?
WAC 284-03-055 What are the fees to copy or inspect records?
WAC 284-03-060 What records can I inspect and/or copy?
WAC 284-03-065 When can I inspect or copy documents?
WAC 284-03-070 Do I need to make an appointment?
WAC 284-03-075 Can I take original records away from the OIC's office?
WAC 284-03-100 If I make a complaint or inquiry, how will the OIC use that information?
WAC 284-03-105 Will the OIC protect my personal information?

Washington State Code Reviser's Office