Original Notice.

     Preproposal statement of inquiry was filed as WSR 12-04-037.

     Title of Rule and Other Identifying Information: The public disclosure commission's (PDC) public records rules at chapter 390-13 WAC, General provisions relating to public records of state and local agencies; chapter 390-14 WAC, Access to public records of the public disclosure commission; and chapter 390-37 WAC, Enforcement hearing (adjudicative proceeding) rules.

     Hearing Location(s): 711 Capitol Way, Room 206, Olympia, WA 98504, on August 23, 2012, at 9:30 a.m.

     Date of Intended Adoption: August 23, 2012.

     Submit Written Comments to: Nancy Krier, 711 Capitol Way, Room 206, Olympia, WA 98504, e-mail nancy.krier@pdc.wa.gov, fax (360) 753-1112, by August 1, 2012.

     Assistance for Persons with Disabilities: Contact Jana Greer by e-mail at jana.greer@pdc.wa.gov, (360) 586-0544 or (360) 753-1111.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The PDC is updating its public records rules to provide access to the public to the agency's records under the Public Records Act at chapter 42.56 RCW. The proposed amendments and new rules address the PDC's jurisdiction, role of public records officer, hours for inspection and copying records, making and processing public records requests, electronic records, copying records, exemptions from disclosure including records of pending investigations, internal reviews of denials of records, and the records index. The PDC also proposes to repeal a rule providing an optional format for requests for lists of individuals because under chapter 42.56 RCW the PDC does not adopt model rules for other agencies.

     The proposed amendments and new rules implement the recodification of the Public Records Act to chapter 42.56 RCW and modernize the PDC's public records rules in light of changes in technology, and laws and court decisions related to public records. As directed in RCW 42.56.100, this proposal will assist the public in accessing the PDC's records, guide the public and PDC staff on records requests, and provide procedures to protect public records and prevent excessive interference with agency functions.

     Statutory Authority for Adoption: RCW 42.56.100, 42.56.040, 42.17A.110.

     Statute Being Implemented: Chapter 42.56 RCW.

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

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed amendments and new rules implement the recodification of the Public Records Act to chapter 42.56 RCW and modernize the PDC's public records rules. The rules are required by RCW 42.56.100, and also are authorized under RCW 42.56.040 and 42.17A.110.

     Name of Proponent: PDC, governmental.

     Name of Agency Personnel Responsible for Drafting: Nancy Krier, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1980; Implementation: Suemary Trobaugh, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1111; and Enforcement: Andrea McNamara Doyle, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 753-1111.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of these rule amendments has minimal impact on small business. The PDC is not subject to the requirement to prepare a school district fiscal impact statement, per section 1, chapter 210, Laws of 2012 (adding a new section to chapter 28A.305 RCW and amending RCW 34.05.320).

     A cost-benefit analysis is not required under RCW 34.05.328. The PDC is not an agency listed in subsection (5)(a)(i) of RCW 34.05.328. Further, the PDC does not voluntarily make that section applicable to the adoption of these rules pursuant to subsection (5)(a)(ii), and to date, the joint administrative rules review committee has not made the section applicable to the adoption of these rules.

July 11, 2012

Nancy Krier

General Counsel

OTS-4825.1

REPEALER

     The following section of the Washington Administrative Code is repealed:

WAC 390-13-010

Optional format for requests for lists of individuals.

OTS-4826.2

NEW SECTION
WAC 390-14-011   Purpose of this chapter -- To implement the Public Records Act and describe the commission.   (1) The purpose of chapter 390-14 WAC is to establish the commission's procedures to provide full access to its public records and to implement the provisions of the Public Records Act under chapter 42.56 RCW for the commission.

     (2) The commission implements and enforces chapter 42.17A RCW, the laws governing campaign finance, lobbying, reporting by public treasurers, and personal financial affairs disclosures. A description of the commission organization, general operations and procedures is under chapter 390-12 WAC. More information is located on its web site at www.pdc.wa.gov. The commission does not implement or enforce the Public Records Act for other public agencies.

     (3) If you wish to obtain general information or copies of records, you do not need to submit a formal public records request. You will often find such information on the commission's web site, or you may make an informal routine inquiry by contacting the commission office.

     (a) The commission is a disclosure agency. The commission is required to operate a web site. Therefore, the commission routinely places numerous categories of records on its web site. You are strongly encouraged to review the web site prior to making a public records request. The web site provides records and other information that can be viewed at no cost, including: The agency's organizational chart; contact information; statutes; rules and rule-making activity; final orders; enforcement case information and records; declaratory orders; interpretive statements; external policies; manuals; fact books; brochures; videos; commission meeting agendas, materials, and minutes; strategic plans; reports; campaign finance data, reports, and forms; lobbying data, reports and forms; other forms and reports; news releases; and, filer information. Information on the web site is updated regularly.

     (b) You may also contact the commission office to make an informal routine inquiry for a record.

     (i) For example, informal routine inquiries generally seek a particular form, brochure, manual, report, lobbyist directory, or other similar readily available record specifically filed or created for the public under chapter 42.17A RCW and they can often be responded to on the same or next business day by providing the record. Informal routine inquiries do not seek a record that includes any exempt information, require any clarification, require providing records in installments, or require a search of different types of agency records or records sent to storage. In addition, informal routine inquiries do not provide any fair notice that the inquiry is a formal public records request submitted under the Public Records Act under chapter 42.56 RCW.

     (ii) If your informal routine inquiry concerns a record or information on the commission's web site, agency staff may direct you to its on-line location.

     (iii) Informal routine inquiries are not subject to the time periods or other procedures in the Public Records Act.

     (4) If you want to make a formal request for a record under the Public Records Act, see WAC 390-14-025.

[]

     (3) The name of the current public records officer is on file with the code reviser in accordance with RCW 42.56.580 and is published in the Washington State Register which is available on-line at www.leg.wa.gov/codereviser.

[Statutory Authority: RCW 42.17A.110. 12-03-002, § 390-14-015, filed 1/4/12, effective 2/4/12. Statutory Authority: RCW 42.17.370(1). 99-12-057, § 390-14-015, filed 5/27/99, effective 6/27/99; 85-15-020 (Order 85-03), § 390-14-015, filed 7/9/85; Order 62, § 390-14-015, filed 8/26/75.]

     (g) Depending upon the specific nature or scope of the request, the public records officer may make other arrangements or provide other procedures to provide full public access to public records, protect public records from damage or disorganization, and prevent excessive interference with other essential functions of the agency or unreasonable disruption of the agency. The public records officer may take into account the volume of records responsive to your request, the availability of staff, and other factors. Such procedures may include making records available on a partial or installment basis.

[Statutory Authority: RCW 42.17.370(1). 99-12-058, § 390-14-020, filed 5/27/99, effective 6/27/99; 85-15-020 (Order 85-03), § 390-14-020, filed 7/9/85; Order 62, § 390-14-020, filed 8/26/75.]

     The commission office is located at 711 Capitol Way, Room 206, Evergreen Plaza Building, Olympia, Washington. The mailing address is: Public Disclosure Commission, P.O. Box 40908, Olympia, ((WA)) Washington 98504-0908. Telephone number: 360-753-1111. Toll-free telephone number: 1-877-601-2828. Facsimile number: 360-753-1112. ((Electronic mail)) E-mail: pdc@pdc.wa.gov. Mark your request to the attention of the public records officer. Include contact information such as your name, address, e-mail address and telephone number, or other contact information. Your request must identify the public records requested, the date of your request, and describe whether you want copies or if you want only to inspect the records. The public records officer may ask you to confirm that you will pay for the records or ask you for a deposit.

     (2) Form. A public records request form is available for you at the commission office and on-line at www.pdc.wa.gov.

     (3) E-mail requests.

     (a) Send your e-mail request to pdc@pdc.wa.gov. Do not send your request to other commission e-mail addresses. This procedure helps the agency see your request so it can respond timely. Include the information described in subsection (1) of this section. E-mail requests sent to agency e-mail addresses other than pdc@pdc.wa.gov will not be considered a public records request under chapter 42.56 RCW but will be responded to as an informal routine inquiry or a general request for information.

     (b) Public records requests received via e-mail after regular business hours or on nonbusiness days will be considered received the next business day.

     (4) Making oral requests. To avoid misunderstandings about what records you seek, you are strongly encouraged to make a public records request in writing. If you make an oral request, the public records officer will ask you to confirm it before beginning to process it. Your request will be processed after the agency verifies your request in writing.

     (5) Records posted on the commission web site. You are strongly encouraged to review the commission's web site at www.pdc.wa.gov prior to making a request to see if the records you seek are already posted.

     (6) Assistance. (((2))) Whenever ((a member of the public)) you request((s)) assistance in making a public records request, the ((staff member to whom the request is made shall)) public records officer will assist ((the member of the public)) you in identifying the appropriate public record.

[Statutory Authority: RCW 42.17A.110. 12-03-002, § 390-14-025, filed 1/4/12, effective 2/4/12. Statutory Authority: RCW 42.17.370(1). 02-03-018, § 390-14-025, filed 1/4/02, effective 2/4/02; 99-12-059, § 390-14-025, filed 5/27/99, effective 6/27/99; 85-15-020 (Order 85-03), § 390-14-025, filed 7/9/85; Order 64, § 390-14-025, filed 11/25/75; Order 62, § 390-14-025, filed 8/26/75.]

     (2) The commission will generally provide records in the format you request, to the extent feasible and reasonable and within current resources. If the commission cannot provide the records to you in the format you request, the commission at its option may provide the records in another format. See WAC 390-14-028. The commission may provide records in a format in which the record is maintained by the commission for its business purposes. The commission is not required to create new records in order to respond to your request. The public records officer will explain why any records are withheld in whole or in part. See WAC 390-14-035. You must pay applicable charges for records you receive. See WAC 390-14-030. There is no cost to you for inspecting records at the commission office or on the web site.

     (3) The public records officer will close your request when:

     (a) You have been provided the requested records;

     (b) You withdraw the request or ask that the processing end; or

     (c) You fail to:

     (i) Provide clarification or otherwise respond to the public records officer when requested;

     (ii) Inspect or pay for an installment of records; or

     (iii) Pay any requested deposit.

[]

     (2) Providing electronic records. The commission may provide records to you electronically if you request them to be provided electronically, to the extent feasible and reasonable and within current resources. Given technology and resource changes, the commission may adjust at any time how or in what specific format records may be provided electronically, and those adjustments may not be set out in rule. However, the following general procedures apply:

     (a) Records provided on the commission's web site have been provided to you electronically. The commission will not provide those records in another electronic format. The public records officer will identify the link to the web site location of the records you request.

     (b) If you request an electronic record that is not on the web site and not reasonably translatable into the format you request, or the commission cannot provide the record in electronic format you request given the commission's current technology and resources, then at the commission's option either:

     (i) Electronic copies will be provided to you in a format currently used by the commission; or

     (ii) Paper copies will be provided to you.

     (c) The commission does not have an obligation to convert an electronic record to a digital format that is different than a format maintained by the commission.

     (d) The commission does not have an obligation to purchase additional software, equipment, licenses or other items to respond to your requests for records.

     (3) Exempt information in electronic records. When electronic records you request require redaction to withhold exempt information and redactions cannot be provided electronically, or the records are contained in a data base or program that contains exempt or proprietary information, the commission may provide you paper copies with any redactions noted on those copies.

[]

     The commission shall charge persons who use agency equipment to make paper copies from microfiche ten cents per page. These charges are the amounts necessary to reimburse the commission for its actual costs incident to copying, including the use of the commission's equipment. Charges will not be assessed if the total cost involved in a particular request is less than one dollar)) made available in the commission office or on the commission web site.

     (2) The commission does not charge a fee for locating public records and making them available to you for copying.

     (3) The commission may charge a published fee for copying records, if you order copies. The commission's schedule of charges for copies is published on the commission's web site at www.pdc.wa.gov and is available by contacting the public records officer. The executive director may revise the schedule periodically as needed.

     (4) Before beginning to make copies, the public records officer may require you to deposit up to ten percent of the estimated costs of copying and mailing all the records selected by you. The public records officer may also require you to pay the remainder of the copying costs before providing you all the records, or require you to pay the costs of copying an installment before providing you that installment. If you do not retrieve or pay for an installment of records within the time frame set by the public records officer, the balance of the request will not be fulfilled and your request will be closed.

     (5) If it is reasonable and feasible to do so, the commission may provide copies of records electronically. See WAC 390-14-028. Charges for electronic records, if any, are provided in the commission's schedule. Electronic disclosure of records includes providing them on the commission's web site.

[Statutory Authority: RCW 42.17.370(1). 99-12-060, § 390-14-030, filed 5/27/99, effective 6/27/99; 85-15-020 (Order 85-03), § 390-14-030, filed 7/9/85; 82-18-031 (Order 82-06), § 390-14-030, filed 8/25/82; 82-05-001 (Order 82-01), § 390-14-030, filed 2/4/82; Order 62, § 390-14-030, filed 8/26/75.]

     (2) ((All denials of requests for public records must be accompanied by)) If the agency denies all or part of your request, you will be provided 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.

     (3) Examples of exemptions that the agency may cite include, but are not limited to: Records related to a pending investigation (RCW 42.56.240(1)); records protected by the attorney client privilege or attorney work product (RCW 42.56.290 and 5.60.060); personal information in any files maintained for employees, appointees or elected officials to the extent that disclosure would violate their right to privacy (RCW 42.56.230); and bank account, credit card or similar numbers (RCW 42.56.230).

     (4) During the course of any investigation, records generated or collected as a result of that investigation are exempt from public inspection and copying under RCW 42.56.240(1), until the investigation is completed. See WAC 390-37-060(4).

     (5) If you make a request for a record that implicates the privacy of an individual as defined in RCW 42.56.050, the agency may provide written notice of the request to allow the individual to request a protective order from a court under chapter 42.56 RCW.

     (6) The commission is required by law to return certain documents provided to the commission by candidates, campaigns, or political committees within one week of the completion of an audit or field investigation; therefore, those records may not be in the agency's possession if a records request is made after that time. See RCW 42.17A.105.

     (7) The agency is prohibited by RCW 42.56.070 from disclosing lists of individuals for commercial purposes. If you request such records you may be required to sign an affidavit attesting that you will not use those records for commercial purposes.

     (8) The commission may, in its discretion, release requested records despite the applicability of exemptions, if it determines that it is in the public interest and that the rights of third parties will not be prejudiced. This provision does not apply to releases of lists of individuals for commercial purposes.

[Statutory Authority: RCW 42.17A.110. 12-03-002, § 390-14-035, filed 1/4/12, effective 2/4/12. Statutory Authority: RCW 42.17.370(1). 99-12-061, § 390-14-035, filed 5/27/99, effective 6/27/99; 85-15-020 (Order 85-03), § 390-14-035, filed 7/9/85; Order 62, § 390-14-035, filed 8/26/75.]

     (2) ((Immediately after receiving a)) The public records officer will immediately refer your written request for review of a decision denying a public record((, the public records officer shall refer it)) to the chair of the commission or the chair's designee. The chair ((shall)) or chair's designee will immediately consider the matter and either affirm or reverse, in whole or in part, such denial or call a special meeting of the commission as soon as legally possible to review the denial. In any case, the ((request shall be returned)) agency will provide you with a final decision within two business days following your petition for review of the original denial in accordance with RCW 42.56.520 unless you and the agency agree to a longer time period for this review.

     (3) The agency may also consider, and you are encouraged to consider, using alternative dispute resolution mechanisms to address the issues in your request for review.

     (4) If the agency denies you access to public records because it claims the record is exempt in whole or in part from disclosure, you may request the attorney general's office to review the matter under RCW 42.56.530. See WAC 44-06-160.

     (5) You may seek court review of a denial of a public records request under RCW 42.56.550 beginning two business days after the agency initially denies your request, regardless of any internal administrative appeal.

[Statutory Authority: RCW 42.17A.110. 12-03-002, § 390-14-040, filed 1/4/12, effective 2/4/12. Statutory Authority: RCW 42.17.370(1). 99-12-062, § 390-14-040, filed 5/27/99, effective 6/27/99. Statutory Authority: RCW 42.17.390. 94-05-010, § 390-14-040, filed 2/3/94, effective 3/6/94. Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), § 390-14-040, filed 7/9/85; Order 62, § 390-14-040, filed 8/26/75.]

     (a) All records issued before July 1, 1990, for which the commission has maintained an index.

     (b) Final adjudicative orders and declaratory orders issued after June 30, 1990, that contain an analysis or decision of substantial importance to the commission in carrying out its duties.

     (c) Interpretive and policy statements ((that were)) issued after June 30, 1990.

     (2) Final and declaratory orders ((shall be)) are evaluated by the executive director or executive director's designee. Those orders which are determined to have substantial importance ((shall be)) are indexed and posted on the agency's web site.

     (3) Final orders ((shall be)) are indexed by the name of the person against whom the order was issued and by citation to the law involved.

     (4) Declaratory orders ((shall be)) are indexed by number, subject matter, phrase describing the issue or holding and citation to the law involved.

     (5) Interpretive statements and policy statements ((shall be)) are indexed by number and subject matter and are available on the agency's web site.

     (6) Most indexes are available on-line and the indexes are available for public inspection and copying weekdays, excluding legal holidays or other days the agency is closed, between 8:00 a.m. and 5:00 p.m. at the Public Disclosure Commission, 711 Capitol Way, Room 206, Evergreen Plaza Building, Olympia, Washington 98504-0908.

     (7) The indexes ((shall be)) are updated ((quarterly)) periodically. In addition to the indexing system, the commission also maintains and continually updates its web site at www.pdc.wa.gov, which includes commission rules, manuals and brochures; commission meeting agendas and materials; historical data, reports and other agency documents.

[Statutory Authority: RCW 42.17.370(1). 02-03-018, § 390-14-045, filed 1/4/02, effective 2/4/02; 99-12-063, § 390-14-045, filed 5/27/99, effective 6/27/99. Statutory Authority: RCW 42.17.370. 91-16-072, § 390-14-045, filed 8/2/91, effective 9/2/91. Statutory Authority: RCW 42.17.370(1). 85-15-020 (Order 85-03), § 390-14-045, filed 7/9/85; Order 62, § 390-14-045, filed 8/26/75.]

OTS-4827.2

AMENDATORY SECTION(Amending WSR 03-22-065, filed 11/4/03, effective 12/5/03)

WAC 390-37-001   Enforcement cases -- Jurisdiction.   The commission enforces ((the sections of)) chapter 42.17A RCW concerning campaign financing, lobbyist reporting, reporting of public officials' financial affairs, reporting by public treasurers, political advertising, ((and)) campaign contribution limitations and the other provisions in chapter 42.17A RCW. The commission does not enforce the Public Records ((provisions of)) Act under chapter ((42.17)) 42.56 RCW ((because RCW 42.17.340)). RCW 42.56.550 provides for direct review by the superior courts for persons seeking to enforce chapter 42.56 RCW.

[Statutory Authority: RCW 42.17.370. 03-22-065, § 390-37-001, filed 11/4/03, effective 12/5/03.]

     (a) The executive director will conduct an initial review of the complaint to determine if it is obviously unfounded or frivolous((,)) or appears on its face to have merit. An initial review is a preliminary investigation to determine if there is sufficient ground indicating that a material violation of chapter 42.17A RCW may have occurred and/or the respondent may not be in substantial compliance with the relevant statutes and rules.

     (b) Whenever an initial review of a complaint indicates that a material violation of chapter 42.17A RCW may have occurred and/or the respondent may not be in substantial compliance with the relevant statutes and rules, the executive director ((shall)) may direct ((an)) a formal investigation be conducted.

     (c) If ((after an initial review of the complaint it is determined that a complete and thorough)) the executive director determines a formal investigation will require the expenditure of substantial resources, the executive director may request review and concurrence by the commission before ((continuing the investigation)) proceeding.

     (2) The executive director shall initiate an adjudicative proceeding or provide a report to the commission whenever an investigation reveals facts that the executive director has reason to believe are a material violation of ((the sections of)) chapter 42.17A RCW ((under the commission's jurisdiction,)) and do not constitute substantial compliance.

     (3) The respondent shall be notified of the date of the adjudicative proceeding no later than ten calendar days before that date. The notice shall contain the information required by RCW 34.05.434. The complainant shall also be provided a copy of this notice.

     (4) It is the policy of the commission during the course of any investigation that all records generated or collected as a result of that investigation are exempt from public inspection and copying under RCW 42.56.240(1).

     (a) The records are exempt until:

     (i) The enforcement matter is scheduled for an adjudicative proceeding;

     (ii) After receiving a report on an enforcement matter, the commission accepts the investigation as complete and moves the matter forward to an adjudicative proceeding, or dismisses the complaint, or refers the matter to law enforcement authorities under RCW 42.17A.105 or 42.17A.755(3);

     (iii) The commission or chair concur in a dismissal by the executive director; or

     (iv) The commission or executive director otherwise finally disposes of the complaint.

     (b) Without waiving any exemptions from public disclosure that are otherwise available for pending investigations, the commission may make public:

     (i) A copy of a complaint filed with or submitted to the commission, including any attachments; and

     (ii) Materials concerning an enforcement matter that are placed on the commission's web site with a commission meeting agenda.

     (c) If a request is made for any such record that implicates the privacy of an individual as defined in RCW 42.56.050, written notice of the records request ((will)) may be provided to the individual in order that such individual may request a protective order from a court under RCW 42.56.540.

     (d) Certain documents provided to the commission shall be returned to candidates, campaigns, or political committees as required by RCW 42.17A.105 within seven calendar days of the commission's final action upon completion of an audit or field investigation.

[Statutory Authority: RCW 42.17A.110. 12-03-002, § 390-37-060, filed 1/4/12, effective 2/4/12. Statutory Authority: RCW 42.17.370. 05-11-001, § 390-37-060, filed 5/4/05, effective 6/4/05; 03-22-065, § 390-37-060, filed 11/4/03, effective 12/5/03; 93-24-003, § 390-37-060, filed 11/18/93, effective 12/19/93; 91-16-072, § 390-37-060, filed 8/2/91, effective 9/2/91. Statutory Authority: RCW 42.17.370(1). 86-04-071 (Order 86-01), § 390-37-060, filed 2/5/86; 84-12-017 and 84-12-029 (Orders 84-03 and 84-03A), § 390-37-060, filed 5/25/84 and 5/29/84; Order 81, § 390-37-060, filed 7/22/76.]

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