WSR 17-22-116
PROPOSED RULES
OFFICE OF
ADMINISTRATIVE HEARINGS
[Filed October 31, 2017, 11:59 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-15-102.
Title of Rule and Other Identifying Information: Chapter 10-04 WAC, Agency organizationPublic records.
Hearing Location(s): On December 5, 2017, at 2:00 p.m. – 3:00 p.m., at 2420 Bristol Court S.W., Olympia, WA 98502.
Date of Intended Adoption: December 8, 2017.
Submit Written Comments to: Joshua Sundt, Deputy Chief Administrative Law Judge (ALJ) and Public Records Officer, P.O. Box 42488, Olympia, WA 98504-2488, email Joshua.sundt@oah.wa.gov, fax 360-664-8721, by December 4, 2017.
Assistance for Persons with Disabilities: Contact Johnette Sullivan, assistant chief ALJ and ADA coordinator, phone 360-407-2700, fax 360-664-8721, email Johnette.sullivan@oah.wa.gov, by December 4, 2017.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Chapter 10-04 WAC is being updated in response to recent legislation on public records, in order to provide guidance and clarity to public records requesters.
Statutory Authority for Adoption: RCW 34.12.030(6).
Statute Being Implemented: Chapter 42.56 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Office of administrative hearings, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Joshua Sundt, 2420 Bristol Court S.W., Olympia, WA 98502, 360-407-2700.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. This proposed rule does not involve rules of any of the agencies identified in RCW 34.05.328(5) for which a cost-benefit analysis is required.
The proposed rule does not impose more-than-minor costs on businesses. Following is a summary of the agency's analysis showing how costs were calculated. This proposed rule making does not result in any economic impact on small business or fiscal impact on school districts.
October 31, 2017
Lorraine Lee
Chief ALJ
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-010 Purpose.
The purpose of this chapter is to provide rules ((implementing RCW 42.17.250 [42.56.040] et seq. for the office of administrative hearings)) for the office of administrative hearings to implement the provisions of chapter 42.56 RCW relating to public records.
NEW SECTION
WAC 10-04-015 Definitions.
The definitions set forth in RCW 42.56.010 apply throughout this chapter, unless the context clearly requires otherwise.
(1) "Case" means an adjudicative proceeding as defined in RCW 34.05.010(1).
(2) "Case file" means the same thing as "official record" while a case is pending with the office. Once a case is no longer pending with the office, "case file" means any records possessed by the office which are copies of all or part of the official record.
(3) "Days" means calendar days unless otherwise stated.
(4) "Office" means the office of administrative hearings. Where appropriate, office also refers to the staff and employees of the office of administrative hearings.
(5) "Official record" means the complete record of a case, as defined in RCW 34.05.476. The official record may be either paper or electronic. The official record does not include any additional copies or drafts of documents, or notes.
(6) "Page" means one impression on a single side of a sheet of paper, or the electronic equivalent.
(7) "Public records officer" means the public records officer or designee for the office appointed by the chief administrative law judge.
(8) "Referring agency" means an agency that refers cases to the office under RCW 34.05.425 (1)(c).
AMENDATORY SECTION (Amending WSR 15-02-087, filed 1/7/15, effective 1/12/15)
WAC 10-04-020 ((FunctionOrganizationOffices.)) Description of the office of administrative hearings.
(1) The office ((of administrative hearings)) conducts impartial administrative hearings for ((state agencies and local governments pursuant to)) referring agencies under chapter 34.12 RCW. ((The office is under the direction of the chief administrative law judge.
Administrative law judges preside over hearings in adjudicative proceedings and issue initial or final orders, including findings of fact and conclusions of law.))
(2) The ((administrative)) office headquarters is located at 2420 Bristol Ct. SW, P.O. Box 42488, Olympia, Washington, 98504-2488. The ((office)) headquarters hours are 8:00 a.m. to noon and 1:00 p.m. to 5:00 p.m., Monday through Friday, except legal holidays. ((Administrative law judges are assigned to field offices located in Olympia, Seattle, Spokane, Tacoma, and Yakima. Each office is headed by an assistant chief administrative law judge.
All written communications by parties pertaining to a particular case shall be filed with the field office, if any, assigned to the case, and otherwise with the chief administrative law judge or designee at the administrative office.))
NEW SECTION
WAC 10-04-025 Organization, operations, and procedures.
The office is under the direction of the chief administrative law judge. Administrative law judges preside over hearings in cases and issue initial or final orders, including findings of fact and conclusions of law. Administrative law judges are assigned to locations in Olympia, Seattle, Spokane Valley, and Tacoma.
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-030 Public records((Availability)) officer.
((Public records are available for public inspection and copying except as otherwise provided under chapter 42.17 RCW and these rules.)) (1) The public records officer is appointed by the chief administrative law judge and is located in the headquarters office.
(2) The public records officer is responsible for implementing these rules and ensuring the fullest assistance to requestors.
(3) The public records officer is responsible for overseeing compliance with the Public Records Act, but staff members may process requests.
NEW SECTION
WAC 10-04-035 Availability of records.
Public records are available for inspection during normal business hours. For the purposes of this chapter, normal business hours are 8:00 a.m. to noon and 1:00 p.m. to 5:00 p.m. Monday through Friday, except legal holidays. Records must be inspected at the headquarters office or other location as authorized by the public records officer.
NEW SECTION
WAC 10-04-037 Location of case records.
(1) The office is the custodian of the official record only while a case is pending with the office. The referring agency is the custodian of the official record at all other times.
(2) Requestors seeking to inspect or receive copies of the official record for cases pending with the office should direct their requests to the office. Requestors seeking to inspect or receive copies of the official record for cases that are no longer pending with the office should direct their requests to the referring agency.
(3) Requestors seeking to inspect or receive copies of the case file should direct their requests to the office.
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-040 ((Public recordsOfficer.)) Requests for public records.
((The public records officer for the administrative office shall be the executive assistant. For those records maintained at field office locations, the public records officer shall be the senior administrative law judge.)) (1) Prior to submitting a records request, requestors are encouraged to view documents available on the office web site at www.oah.wa.gov.
(2) Requestors seeking to inspect or receive copies of public records must give reasonable notice to the office that the request is for public records. The request should be addressed to the public records officer.
(3) Requestors may use the public records request form available at www.oah.wa.gov.
(4) Requestors are encouraged to include the following information in the request:
• Name of requestor;
• Contact information of requestor, such as telephone number, mailing address, and email address;
• The date of the request;
• Enough information about the public records being requested to allow the office to reasonably identify and locate any responsive records; and
• Preferred method of receiving the responsive records.
NEW SECTION
WAC 10-04-045 Responses to public records requests.
(1) Within five business days of receipt of the request, the public records officer will acknowledge receipt and do one or more of the following:
(a) Make the records available for inspection or copying;
(b) Send copies of the records to the requestor, if copies are requested and the requestor has paid any fees that are due;
(c) Provide a reasonable estimate of when the records will be available;
(d) Request clarification from the requestor, if the request is unclear or does not sufficiently identify the requested records; or
(e) Deny the request.
(2) Before providing public records, the public records officer may notify others potentially affected by the disclosure of those records, so that they can seek a court order to prevent or limit the disclosure under RCW 42.56.540. The notice to the affected persons will include a copy of the public records request.
(3) Some records are exempt from disclosure, in whole or in part, and may be withheld or redacted.
(4) The office is not required to create a record that does not otherwise exist.
(5) The public records officer will close a request and inform the requestor that the office has closed the request if the requestor:
(a) Withdraws the request;
(b) Fails to inspect the records;
(c) Fails to pay a fee for records within thirty days after the office sends notification of the fee to the requestor; or
(d) Fails to claim copies of records within thirty days after the office sends notification that the copies are available.
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-050 ((Requests for)) Inspection of public records.
(((1) Members of the public may inspect or obtain copies of public records in accordance with chapter 42.17 RCW by submitting a written request to the public records officer (or designee) during office hours. The office shall provide a form for submitting a request for public records. The request shall include the following information:
(a) The name of the person requesting the record;
(b) The date on which the request was made;
(c) The nature of the request;
(d) An appropriate description of the record requested; and
(e) Where and how to deliver the record requested.
(2) The public records officer shall assist the member of the public in appropriately identifying the public record requested.)) (1) The office will provide space to inspect public records.
(2) The office will notify the requestor in writing that the records are available to inspect. Within thirty days after the office sends notification, the requestor must make arrangements with the office to inspect the records.
(3) After inspection is complete, the requestor must identify which records he or she wishes the office to copy. Depending on staff availability and the volume of records requested, the office may copy the records at that time or provide the records to the requestor at a later date.
(4) When the inspection of the requested records is complete and all requested copies are provided, the public records officer will send notification to the requestor that the request is closed.
NEW SECTION
WAC 10-04-055 Protection of public records.
(1) The office will maintain its records in a reasonably organized manner and will take reasonable actions to protect records from damage and disorganization.
(2) Records will be made available to the requestor for inspection subject to the following restrictions:
(a) The records must not be removed from the designated area;
(b) The public records officer may limit the number of pages provided for inspection at one time;
(c) All possible care must be taken to prevent damage to the records;
(d) Records may not be marked, altered, cut or mutilated in any way;
(e) Use of liquids, eating, drinking, and smoking while inspecting the records is prohibited;
(f) Records must not be defaced in any way, including by writing on, folding, tracing or fastening them with fasteners other than those already existing in file;
(g) Records must be kept in the order in which they are received; and
(h) All copying of records will be done by office staff.
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-060 ((Copying fees.)) Installments.
((No fee shall be charged for the inspection of public records. The office shall charge a fee of fifteen cents per page of copy for providing copies of public records and for the use of the office's copy equipment, including electronic telefacsimile transmission, plus the actual postage or delivery charge. Fees may be waived for minimal copies.)) (1) The public records officer may provide access to records in installments under RCW 42.56.080.
(2) When the request is for copies of public records, the public records officer may require payment for each installment either prior to providing the installment or prior to providing subsequent installments.
NEW SECTION
WAC 10-04-065 Electronic records.
(1) When providing electronic records, the public records officer will provide records in a file format that is generally commercially available.
(2) If a record exists on a web page, the public records officer may respond by providing the link to the record.
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-070 Exemptions.
(1) The office ((reserves the right to)) must determine ((that)) if a public record requested ((in accordance with the procedures outlined in WAC 10-04-050)) is exempt from disclosure, in whole or in part, under ((the provisions of)) chapter ((42.17)) 42.56 RCW or other applicable law.
(2) ((In addition, pursuant to RCW 42.17.260(1), the office reserves the right to delete identifying details when it makes available or publishes any public record in any cases where there is reason to believe that disclosure of such details would be an invasion of personal privacy protected by chapter 42.17 RCW. The public records officer will fully justify such deletion in writing.
(3) All denials of requests for public records must be accompanied by 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 records withheld.)) If an entire record is exempt from disclosure it will be withheld. For each record withheld, the public records officer will identify the record, note the applicable exemption and give a brief explanation for each exemption. If only parts of a record are exempt from disclosure, the public records officer will redact the exempt parts, note the applicable exemptions, and give a brief explanation for each exemption.
(3) The office is prohibited by statute from disclosing lists of individuals for commercial purposes under RCW 42.56.070(8).
NEW SECTION
WAC 10-04-075 Fees for providing public records.
(1) There is no fee for inspecting public records.
(2) The office will charge for providing copies of public records and will maintain a fee schedule on its web site.
(3) The office is not calculating actual costs for copying its records because doing so would be unduly burdensome for the following reasons:
(a) The office does not have the resources to conduct a study to determine actual copying costs;
(b) Conducting such a study would interfere with other essential agency functions; and
(c) Through the legislative process, the public and requestors have commented on and been informed of authorized fees and costs provided in the Public Records Act and other laws.
(4) The office uses the standard fees and costs authorized in RCW 42.56.120.
(5) The public records officer may require payment of fees before providing the records.
(a) Before beginning to copy public records, a deposit of up to ten percent of the estimated costs of copying may be required.
(b) Payment of the costs of copying an installment may be required before the installment is provided.
(c) If payment of fees is required, the office will send notification to the requestor. Within thirty days after the office sends notification, the requestor must pay the fee or make other arrangements with the office.
(6) The office will not charge sales tax for copies of public records.
(7) The office will accept payment by check, money order, or cash. For cash payments, it is within the office's discretion to determine the denomination of bills and coins that will be accepted.
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-080 Agency review of denials ((of public records request)) or time estimates.
(1) A ((person)) requestor whose request for a public record has been denied or who believes that the office has not made a reasonable estimate of the time to respond to the request may petition the chief administrative law judge for ((prompt)) review of the denial ((by submitting a written request for review)) or estimate.
(a) The ((written request shall specifically refer to)) petition must be in writing and include a copy of, or reasonably identify, the written statement by the public records officer ((or other staff member which constituted or accompanied the denial.
(2) Immediately after receiving a written request for review of a decision denying a public record, the public records officer or other staff member denying the request shall refer it to the chief administrative law judge or designee.)) denying the request or providing the estimate.
(b) The petition must be sent to the public records officer who will promptly provide the petition and any other relevant information to the chief administrative law judge to conduct the review.
(2) The chief administrative law judge ((or designee shall immediately)) will consider the ((matter)) petition and either affirm, modify, or reverse the denial or the estimate. This review will be completed within two business days following the ((original denial)) office's receipt of the petition, or within such times as mutually agreed by the office and the requestor.
(3) ((A person whose request for a public record has been denied)) If the office denies access to a public record because it claims the record is exempt from disclosure in whole or in part, the requestor may request the attorney ((general)) general's office to review the ((matter pursuant to RCW 42.17.325)) denial under RCW 42.56.530.
(4) A requestor may obtain judicial review of a denial of a public records request under RCW 42.56.550 at the conclusion of two business days after the initial denial regardless of any administrative appeal.
NEW SECTION
WAC 10-04-085 Records index.
(1) The office's index of public records is available at www.oah.wa.gov.
(2) The state general records retention schedule and the office's records retention schedule supplement the office's index.
AMENDATORY SECTION (Amending WSR 99-20-115, filed 10/6/99, effective 11/6/99)
WAC 10-04-090 ((Protection of public records.)) Communications with the office of administrative hearings.
(((1) No person shall knowingly alter, deface, or destroy public records of the office.
(2) Original copies of public records of the office shall not be removed from the premises where maintained by the office.
(3) Care and safekeeping of public records of the office, furnished pursuant to a request for inspection or copying, shall be the sole responsibility of the requestor.
(4) Records furnished for public inspection or copying shall be returned in good condition and in the same file sequence or organization as when furnished.
(5) Persons requesting, inspecting, or copying public records shall not disrupt the office.)) Information about requesting public records from the office is at www.oah.wa.gov. Requests for public records and related questions should be directed to the public records officer, who may be contacted as follows:
Public Records Officer
Office of Administrative Hearings
P.O. Box 42488
Olympia, WA 98504-2488
360-407-2700
publicrecords@oah.wa.gov