WSR 17-16-009 EMERGENCY RULES DEPARTMENT OF COMMERCE [Filed July 20, 2017, 9:40 a.m., effective July 23, 2017] Effective Date of Rule: July 23, 2017.
Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: EHB 1595 (chapter 304, Laws of 2017) establishes new requirements for state agencies wishing to charge fees to recover the cost of providing public records. Section 3 (2)(b) specifies that an agency need not calculate actual costs for providing records if it has rules or regulations declaring the reasons that doing so would be unduly burdensome. Commerce finds that its records are diverse in nature and are preserved in a wide variety of formats. Thus, it would require significant time and resources to compile actual costs of providing records. The needed resources to do a cost study are not currently available and, therefore, commerce finds that it would be unduly burdensome to calculate the actual costs of copying public records. Commerce intends to adopt the default cost schedule established by EHB 1595.
Purpose: This amendment to WAC 365-10-060 is adopted on an emergency basis to comply with HB [EHB] 1595 (chapter 304, Laws of 2017), which establishes new requirements for state agencies wishing to charge fees to recover the cost of providing public records. The bill's effective date is July 23, 2017. Commerce will also file a preproposal statement of inquiry (CR-101) to adopt this and other permanent changes to its Public records—Disclosure rules (chapter 365-10 WAC).
Statutory Authority for Adoption: EHB 1595 (chapter 304, Laws of 2017), chapters 42.56 and 43.330 RCW.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; and that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: Commerce's existing rule allows recovery of costs of responding to public records requests. Changes made by EHB 1595 (chapter 304, Laws of 2017) require changes to the rule before the bill's effective date of July 23, 2017, in order to continue to lawfully recover such costs. The general welfare is dependent upon agencies such as commerce being able to meet the needs of the people of the state. Accessing public records is one such need, and therefore this rule amendment is necessary for the preservation of general welfare. Insufficient time remains before the bill's effective date for adoption of a permanent rule, thus it would be contrary to the public interest to allow commerce's cost recovery rule to lapse between the bill's effective date and the effective date of a permanent rule. Adopting this emergency rule amendment is in the public interest as it preserves commerce's ability to recover costs until a permanent rule is adopted.
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 1, 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 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
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: July 20, 2017.
Brian Bonlender
Director
AMENDATORY SECTION (Amending WSR 17-13-124, filed 6/21/17, effective 7/22/17)
WAC 365-10-060 Fees—Inspection and copying.
(1) The department's records are diverse in nature and are preserved in a wide variety of formats. Thus, it would require significant time and resources to compile actual costs of providing records. The needed resources to do a cost study are not currently available and, therefore, the department finds that it would be unduly burdensome to calculate the actual costs of copying public records.
(2) The department may charge the default fees for copies of paper and electronic public records as established in RCW 42.56.120.
(3) No fee shall be charged for the inspection of public records.
(((2) The charge for providing public records may be the actual cost incident to providing the records.
(a) The charge may include the actual cost of the postage or delivery, including the cost of the shipping container, cost of duplicating tape recordings, videotapes, photographs, slides, disks or similar media.
(b) There will be no charge for e-mailing electronic records to a requestor, unless another cost applies.
(3) If determining the actual cost is too burdensome or if the cost cannot be determined, the department may charge fifteen cents for each page, however produced, and the actual postage or delivery charge and the cost of any container or envelope used to mail the public records to the requestor.))
(4) The public disclosure officer may waive fees for copies of public records when collecting the fees would not be cost effective to the department.
(5) Before beginning to copy public records, the public records officer may require:
(a) A deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor;
(b) The payment of the remainder of the copying costs before providing all the records; or
(c) The payment of the costs of copying an installment before providing that installment.
(6) The department will not charge sales tax when it makes copies of public records.
(((5))) (7) Payment must be made by cash in the exact amount charged, check, or money order to the department.
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