WSR 17-16-016

EMERGENCY RULES

[Order 16-14—Filed July 20, 2017, 2:36 p.m., effective July 23, 2017]

Effective Date of Rule: July 23, 2017.

Purpose: The department of ecology is adopting an emergency rule WAC 173-03-9000E Calculation of actual costs of producing copies of public records declared to be unduly burdensome—Adoption of statutory fee schedule. The emergency rule includes a declaration that the calculation of actual costs of producing copies of public records would be unduly burdensome – ecology is going to use the statutory fee schedule.

Citation of Existing Rules Affected by this Order: Amending chapter 173-03 WAC.

Statutory Authority for Adoption: RCW 42.56.100 and 42.56.120 (chapter 304, Laws of 2017; HB [EHB] 1595).

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: Under the Public Records Act (PRA), chapter 42.56 RCW, agencies have the ability to charge a requester for certain costs associated with providing copies of records in response to the requester's public records request, and are required to establish, maintain, and make publicly available a statement of these costs. In the 2017 legislative session, the legislature amended the provision of the PRA that governs charges for providing public records. Under the law prior to the 2017 amendments, agencies could charge for photocopies but not copies of electronic records although the majority of records are provided in electronic format. The 2017 amendments allow agencies to charge requesters for scanning records, providing electronic records via email or other electronic delivery means, and providing records on a CD or thumb drive.

HB [EHB] 1595, passed in the 2017 legislative session, section 3, chapter 304, Laws of 2017, amending RCW 42.56.120, the provision of the PRA that governs agency charges to requesters for providing copies of public records. These amendments in HB [EHB] 1595 were designed to modernize this provision to reflect changes in the way agencies provide copies of records to requesters.

HB [EHB] 1595 becomes law on July 23, 2017, and an agency must have in place either a statement following notice and public hearing that establishes the actual costs of producing records, or a rule that declares the calculation of actual costs would be "unduly burdensome." Otherwise, an agency would not be able to impose copy fees on PRA requestors. Ecology is taking the latter approach, declaring by rule that it will be "unduly burdensome" to calculate actual costs, and has already filed a preproposal to begin the permanent rule-making process. Ecology will conduct this permanent rule making according to normal rule-making procedures, but cannot complete it until some months after the requirements of HB [EHB] 1595 take effect on July 23, 2017.

Ecology finds that it is in the general welfare and the public interest, and benefits requesters and the agency, to adopt the emergency rule in order to preserve and update fees in accordance with the legislatively adopted schedule. Without further action, this would create a period of months during which no statement or rule would be available to the public regarding PRA costs or the methods of calculating them, creating confusion and uncertainty regarding ecology's fee structure and its ability to charge fees. Because this appears to be contrary to the intent of HB [EHB] 1595 and PRA, ecology intends to adopt its declaration initially by emergency rule, to avoid confusion and to remain in compliance with PRA, as amended. This declaration will allow ecology to utilize the statutory default fee schedule created by the legislature in the 2017 amendments starting on July 23, 2017, the date the legislation goes into effect, and to be in full compliance with PRA, as amended.

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 1, Amended 0, 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.

Maia D. Bellon

Director