WSR 17-19-111

PROPOSED RULES

[Filed September 20, 2017, 10:03 a.m.]

Title of Rule and Other Identifying Information: Amend Regulation I, Article 14 (public records).

Hearing Location(s): On October 26, 2017, at 8:45 a.m., at Puget Sound Clean Air Agency, 1904 3rd Avenue, Suite 105, Seattle, WA 98101.

Date of Intended Adoption: October 26, 2017.

Submit Written Comments to: Robert Switalski, Puget Sound Clean Air Agency, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, email robs@pscleanair.org, fax 206-343-7522, by October 25, 2017.

Assistance for Persons with Disabilities: Contact agency receptionist, phone 206-689-4010, fax 206-343-7522, TTY 800-833-6388 or 800-833-6385 (Braille), email robs@pscleanair.org, by October 19, 2017.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The agency is proposing amendments to Regulation I, Section 14.03 to update the language identifying the way the public may submit requests to the agency, including through the agency web site and to make clear that requests may be submitted orally to the agency. The agency accepts records requests orally (in person or by phone); in person at the agency's office; by letter or email; or through the agency's web site.

The agency is proposing amendments to Regulation I, Section 14.04 to match the new legislative requirement that the agency must include a reasonable estimate of time to respond to a request with an agency request for clarification; to remove an unnecessary step not used by the agency when a member of the public wishes to inspect records; and to provide notice that the agency may ask a requester to prioritize requests if more than one is submitted within a thirty day period.

The proposed amendment to Section 14.05 allows for customized service charges in the amount of the actual cost of the service used for the request. In addition, before the agency charges a customized service charge, the agency shall notify the requester of the reason for the charge; a reasonable estimate of the cost of the charge; and the opportunity to amend the request to avoid or reduce the charge.

The agency is proposing an amendment to subsection 14.06(a) to reflect the 2016 list maintained by the Municipal Research and Services Center (MRSC) of exemptions applicable to public records requests and to add reference to a list of exemptions applicable to public records requests maintained on the state of Washington attorney general's web site.

The agency is proposing three amendments to Regulation I, Section 14.07. One, the legislature has determined a 10¢ per page maximum fee for scanned records. Two, addition of subsection (e) to be titled "Actual Costs" and names the actual costs to be charged by the agency: For mailing, including the cost of the shipping container; for transmitting electronic records, including the cost of a transmission charge if used; use of any needed physical media device or cloud-based data storage or processing; and for a customized service charge consistent with the amended Section 14.05. Three, addition of subsection (f), "Summary of Costs," to state that if requested, the agency shall provide a summary of applicable charges before any records are produced and in response to a summary, a requester may revise a request to reduce applicable charges.

Reasons Supporting Proposal: There are no benefits or costs associated with the proposed amendments.

Statutory Authority for Adoption: Chapter 70.94 RCW.

Statute Being Implemented: Chapter 70.94 RCW.

Name of Proponent: Puget Sound Clean Air Agency, governmental.

Name of Agency Personnel Responsible for Drafting: Kyle Ponton-Welty, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, 206-689-4040; Implementation and Enforcement: Jennifer Dold, 1904 3rd Avenue, Suite 105, Seattle, WA 98101, 206-689-4015.

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to local air agencies, per RCW 70.94.141.

Is exempt under RCW 19.85.011.

Explanation of exemptions: Chapter 19.85 does not appear to apply to local air agencies.

September 20, 2017

Craig Kenworthy

Executive Director

(a) Hours for inspection of public records. Public records are available for inspection and copying during the normal business hours of the Agency: Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding legal holidays. Public records must be inspected at the office of the Agency.

(b) The Agency does not have a public records index. Given the small size of the Agency and the high volume and types of public records generated and received by the Agency, the Agency finds that maintaining an index is unduly burdensome and would interfere with Agency operations.

(c) Organization of public records. The Agency will maintain its public records in a reasonably organized manner. The Agency will take reasonable actions to protect public records from damage and disorganization. A requester shall not take Agency public records from Agency offices ((without the permission of the public records officer)).

(d) Public records are available on the Agency's website. A variety of public records are available on the Agency's website at http://www.pscleanair.org. Requesters are encouraged to view the public records available on the website prior to submitting a records request.

(e) Making a request for public records.

(1) Any person wishing to obtain copies of or inspect public records of the Agency should make the request in writing ((on the Agency's request form, or)) by letter, fax, or e-mail addressed to the public records officer, and including the following information:

(A) Name of requester;

(B) Address of requester;

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

(D) Identification of the public records adequate for the public records officer to locate the records; and

(E) The date and time of day of the request.

(2) A requester may also submit a request via the Agency's website at http://www.pscleanair.org, in person at the Agency's office, or orally in person or by telephone. For oral requests, the public records officer will confirm receipt of and the substance of the request in writing to the requester.

(3) If the requester wishes to have copies of public records made instead of simply inspecting them, they should so indicate and make arrangements to pay for copies of the public records or pay a deposit consistent with Section 14.07 of this regulation.

(a) Agency processes requests efficiently. The public records officer will process requests in the order allowing the most requests to be processed in the most efficient manner.

(b) Acknowledging receipt of request. Within 5 business days of receipt of a request, the public records officer will do one or more of the following:

(1) Provide copies of the requested public records to the requester, if copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon;

(2) Provide an internet address and link on the Agency's website to the specific public records requested;

(3) Make the public records available for inspection or copying;

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

(5) If a ((the)) request, or a portion of a request, is unclear or does not sufficiently identify the requested public records, request clarification from the requester. ((Such)) A request for clarification will include a reasonable estimate of time to respond to the request. Clarification may be ((requested and provided)) done by telephone. Clarification done by telephone will be memorialized in writing by the public records officer via letter or e-mail to the requester, and shall state the public records officer's understanding of how the request has been clarified. The public records officer may revise the estimate of when records will be available based upon a clarification; or

(6) Deny the request.

(c) Failure to respond. If the Agency does not respond in writing within 5 business days of receipt of the request for disclosure, the requester should consider contacting the public records officer to determine the reason for the failure to respond.

(d) Prioritization of Requests. If a requester submits more than one request within a 30-day period, the public records officer may ask the requester to prioritize the records he or she is requesting so that the Agency is able to provide records of highest priority first. An Agency is not required to ask for prioritization, and a requester is not required to provide it.

(e) Protecting rights of others. In the event that the requested public records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the public 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 requester 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 an affected person will include a copy of the request. The requester will be notified of the time provided to an affected person to respond to a notice under this section.

(((e))) (f) Inspection of public records.

(1) Consistent with other demands, the Agency shall promptly provide space to a requester to inspect public records. No member of the public may remove a public record from the viewing area or disassemble or alter any public record. The requester shall indicate which public records they wish the Agency to copy.

(2) The requester should ((must)) claim or review the assembled public records within 30 days of the Agency's notification that the public records are available for inspection or copying. The Agency will notify the requester ((in writing of this requirement and inform the requester)) that they should contact the Agency to make arrangements to claim or review the public records. If the requester or a representative of the requester fails to claim or review the public records within the 30-day period or make other arrangements, the Agency may close the request and re-file the assembled public records. Other public records requests may be processed ahead of a subsequent request by the same person for the same or almost identical public records, which can be processed as a new request.

(((f))) (g) Providing copies of public records. After inspection is complete, the public records officer shall make the requested copies or arrange for copying.

(((g))) (h) Providing public records in installments. When the request is for a large number of public records, the public records officer will provide access for inspection and copying in installments, if the officer reasonably determines that it would be practical to provide the records in that way. If, within 30 days, the requester fails to inspect the entire set of public records or one or more of the installments, the public records officer may stop searching for the remaining records and close the request.

(((h))) (i) When access to Agency website is unavailable to requester. If a requester notifies the Agency that they cannot access an Agency public record through the Agency's website, the Agency will make a ((paper)) copy of the requested public record available to the requester.

(((i))) (j) Completion of inspection. When an inspection of requested public records is complete and all requested copies are provided, the public records officer will indicate to the requester that the Agency has made all located, nonexempt public records available for inspection.

(((j))) (k) Closing withdrawn or abandoned requests. When a requester withdraws a request, fails to fulfill his or her obligations to inspect the public records, fails to clarify a request, or fails to pay a deposit or final payment for requested copies, the public records officer will close the request and tell ((indicate)) to the requester that the Agency has closed the request.

(((k))) (l) Later discovered documents. If, after the Agency has informed a requester that it has provided all available public records, the Agency becomes aware of additional responsive public records existing at the time of the request, it will promptly inform the requester of the additional public records and provide them on an expedited basis.

(a) Requesting electronic public records. The process for requesting electronic public records is the same as for requesting paper public records.

(b) Providing electronic public records. When a requester requests public records in an electronic format, the public records officer will provide the nonexempt public records or portions of such records that are reasonably locatable in an electronic format that is used by the Agency and is generally commercially available, or in a format that is reasonably translatable from the format in which the Agency keeps the public records.

(a) Some Agency public records are exempt from inspection and copying. The Act provides that a number of types of public records are exempt from public inspection and copying. In addition, public records are exempt from disclosure if any other statute exempts or prohibits disclosure. Requesters should be aware of exemptions, outside the Act, that restrict the availability of some public records held by the Agency for inspection and copying. The Agency incorporates by reference a list of laws containing exemptions located and maintained by the Municipal Research Service Center, which is located at: http://www.mrsc.org/Publications (Appendix C to Public Records Act for Washington Cities and Counties, MRSC, Report No. 61 Revised, ((November 2009)) September 2016) and by the Washington Attorney General's Office, which is located at http://www.atg.wa.gov. A copy of ((this)) these lists may be obtained from the public records officer.

(b) Exemptions shall be stated and briefly explained by the Agency. If the Agency believes that a public record is exempt from disclosure and should be withheld, the public records officer will state the specific exemption and provide a brief explanation of why the public record or a portion of the public record is being withheld. If only a portion of a public 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 requester why portions of the public record are being redacted.

(c) Lists of individuals may not be disclosed for commercial purposes. The Agency is prohibited by statute from disclosing lists of individuals for commercial purposes.

(a) No fee for inspecting public records. There is no fee for inspecting public records. There is no fee for the Agency's time spent locating records; for preparing public records for inspection, copying, or scanning; or for e-mailing electronic public records to a requester.

(b)Costs for paper copies. There is no fee for the first 50 paper copies made per request. For requests greater than 50 pages:

(1) If paper copies are made at the Agency, a requester may obtain photocopies for $.15 per page;

(2) If paper copies are made outside the Agency at a commercial copier, a requester may obtain copies at the actual cost charged by the commercial copier.

(c) Costs for scanned public records. There is no fee for the first 50 pages scanned per request. For requests greater than 50 pages:

(1) If records are scanned by the Agency, a requester may obtain scanned pages for $.10 ((5)) per page;

(2) If the Agency uses a commercial copier to scan public records to respond to a request electronically, a requester may obtain the scanned public records at the actual scanning cost charged by the commercial copier.

(d) Deposits. Before beginning to make paper copies or scanning records, the public records officer may require a deposit of up to 10% of the estimated costs of copying or scanning the public records selected by the requester. The public records officer may also require the payment of the remainder of the copying or scanning costs before providing all the public records, or the payment of the costs of copying or scanning an installment before providing that installment. The Agency does not charge sales tax when it makes copies of or scans public records.

(e) Actual Costs ((of mailing)). The Agency may also charge the following actual costs: ((of)) mailing, including the cost of the shipping container; transmitting electronic records, including the cost of a transmission charge; use of any needed physical media device or cloud-based data storage or processing; and a customized service charge consistent with Section 14.05 of this regulation.

(f) Summary of Costs. If requested by a requester, the public records officer shall provide a summary of applicable charges before any records are produced. In response to a summary, a requester may revise a request to reduce applicable charges.

(g) Payment. Payment may be made by cash, check, money order, or credit card to the Puget Sound Clean Air Agency.