WSR 18-01-102

PROPOSED RULES

RECREATION AND CONSERVATION

OFFICE

(Recreation and Conservation Funding Board)

[Filed December 19, 2017, 9:39 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 17-22-12 [17-22-120].

Title of Rule and Other Identifying Information: Amending chapter 286-06 WAC, Public records.

Hearing Location(s): On January 31, 2018, at 11:00 a.m., at the Natural Resources Building, Conference Room #172, 1111 Washington Street S.E., Olympia, WA 98501. This is a meeting of the recreation and conservation funding board.

Date of Intended Adoption: January 31, 2018.

Submit Written Comments to: Name: Patty Dickason, 1111 Washington Street S.E., P.O. Box 40917, Olympia, WA 98504, email patty.dickason@rco.wa.gov, fax 360-902-3026, by January 25, 2018. Written comments may also be submitted through the web site of the recreation and conservation office on the policy and rule-making page at https://www.rco.wa.gov/about/Rulemaking.shtml.

Assistance for Persons with Disabilities: Contact Patty Dickason, phone 360-902-3085, fax 360-902-3026, email patty.dickason@rco.wa.gov, by January 25, 2018.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The recreation and conservation office is proposing rule making to amend chapter 286-06 WAC, Public records. The purpose of chapter 286-06 WAC is to implement requirements of the Public Records Act (PRA) including the process the recreation and conservation office uses for disclosing records and charging fees.

The salmon recovery funding board conducts access to public records in the same manner as chapter 286-06 WAC as described in WAC 420-04-100(2).

This update will modernize the rule to reflect the current law, technology, and processes.

Reasons Supporting Proposal: The rule was last updated in November 2014. Since then, the Public Records Act has been amended by the state legislature. The rule needs to be revised to meet requirements of the current law.

This update will modernize the rule to reflect the current law, technology, and processes and thus be more functional and allow the recreation and conservation office to better serve the public, the legislature, our partners and other constituents when seeking agency public records.

Statutory Authority for Adoption: RCW 42.56.100 Public Records Act—Protection of public records—Public access.

Statute Being Implemented: Chapter 42.56 RCW.

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

Name of Proponent: Recreation and conservation office on behalf of the recreation and conservation funding board, governmental.

Name of Agency Personnel Responsible for Drafting: Patty Dickason, Olympia, Washington, 360-902-3085; Implementation: Patty Dickason/Tammy Finch, Olympia, Washington, 360-902-3085/360-725-3936; and Enforcement: Scott Robinson, Olympia, Washington, 360-902-0207.

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 rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 42.56.070, 42.56.120.

Explanation of exemptions: The model rules are advisory only and apply only to government agencies, not small businesses. RCW 42.56.570. To the extent there are costs assessed by public agencies providing records in response to PRA requests by small businesses, the authorized costs are set out in statute and apply to all requestors.

December 18, 2017

Kaleen Cottingham

Agency Director

AMENDATORY SECTION (Amending WSR 14-22-100, filed 11/4/14, effective 12/5/14)

WAC 286-06-070 Availability of public records.

(1) Hours for inspection of records. Public records are available for inspection and copying during normal business hours of the office, from 8:00 a.m. to noon and from 1:00 p.m. to 5:00 p.m., Monday through Friday, excluding legal holidays.

(2) Records index.

(a) An index of public records is available for use by members of the public, including:

(i) Archived files;

(ii) Equipment inventory;

(iii) Office and board policies and procedures, including manuals;

(iv) Active project files;

(v) Publications such as brochures and special reports;

(vi) Policy statements entered after June 30, 1990, as defined in RCW 34.05.010, including grant program manuals; and

(vii) Rule-making files, as described in RCW 34.05.370, for each rule proposed for adoption in the Washington State Register and adopted.

(b) Before June 30, 1990, the office did not maintain an index of:

(i) Declaratory orders containing analysis or decisions of substantial importance to the office in carrying out its duties;

(ii) Interpretive statements as defined in RCW 34.05.010; and

(iii) Policy statements as defined in RCW 34.05.010.

(c) The following general records and files are available by reference to topic, and generally arranged alphabetically or chronologically within such topic. Due to volume, costs, and complexity; however, no master index is maintained:

(i) Administrative files;

(ii) Comprehensive park-recreation plans;

(iii) Summaries of office staff meetings;

(iv) Closed or inactive project files;

(v) General correspondence;

(vi) Attorney general opinions;

(vii) Financial records;

(viii) Summaries and memoranda of office and board meetings;

(ix) Final adjudicative proceeding orders entered after June 30, 1990, as defined in RCW 34.05.010 that contain an analysis or decision of substantial importance to the office or board in carrying out its duties (each listed alphabetically by subject with a phrase describing the issue or issues and relevant citations of law);

(x) Declaratory orders entered after June 10, 1990, that contain an analysis or decision of substantial importance to the office or board in carrying out its duties (each listed alphabetically by case name with a phrase describing the issue or issues and relevant citations of law); and

(xi) Interpretive statements as defined in RCW 34.05.010 (each indexed by the office or board program).

(3) Organization of records. The office will maintain its records in a reasonably organized manner. The office will take reasonable actions to protect records from damage and disorganization. A requestor shall not take records from the office without the permission of the public records officer or designee. A variety of records is available on the office's web site at www.rco.wa.gov. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

(4) Making a request for public records.

(a) Any person wishing to inspect or copy public records of the office should make the request in writing on the office's request form, or by letter, fax, or email addressed to the public records officer and include the following information:

• Name of requestor;

• Address of requestor;

• Other contact information, including telephone number and any email address;

• Identification of the public records adequate for the public records officer or designee to locate the records; and

• The date and time of day of the request.

(b) If the requestor wishes to have copies of the records made instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records or a deposit.

(d) The public records officer or designee may accept requests for public records that contain the above information by telephone or in person. If the public records officer or designee accepts such a request, he or she will confirm receipt of the information and the substance of the request in writing.

(5) A public records request must be for identifiable records. A request for all or substantially all records prepared, owned, used, or retained by an agency is not a valid request for identifiable records under this chapter, provided that a request for all records regarding a particular topic or containing a particular keyword or name shall not be considered a request for all of an agency's records.

(6) An agency may deny a bot request that is one of multiple requests from the requestor to the agency within a twenty-four hour period, if the agency establishes that responding to the multiple requests would cause excessive interference with other essential functions of the office. For purposes of this subsection, "bot request" means a request for public records that an office reasonably believes was automatically generated by a computer program or script.

AMENDATORY SECTION (Amending WSR 14-22-100, filed 11/4/14, effective 12/5/14)

WAC 286-06-085 Processing of public records requests—Electronic records.

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

(2) Providing electronic records. When a requestor requests records in an electronic format, the public records officer will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the office and is generally commercially available, or in a format that is reasonably translatable from the format in which the office keeps the record. Costs for providing electronic records are governed by WAC 44-14-07003.

(3) Customized access to databases. With the consent of the requestor, the office may provide customized access under RCW 43.41A.130 if the record is not reasonably locatable or not reasonably translatable into the format requested. The office may charge a fee consistent with RCW ((43.41A.130)) 43.105.355 for such customized access.

AMENDATORY SECTION (Amending WSR 14-22-100, filed 11/4/14, effective 12/5/14)

WAC 286-06-090 Costs of providing copies of public records.

(1) Costs for paper and electronic copies.

(((a) There is no fee for inspecting public records in the office or emailing electronic records to a requestor, unless another cost applies such as a scanning fee.

(b) The office will charge an amount necessary to reimburse its costs for providing paper and electronic copies of records, including costs for electronic copies on a CD-ROM and scanning paper or other nonelectronic records.

(c) The fee amounts shall be reviewed from time to time by the office, and shall represent the costs of providing copies of public records and for use of the office's copy equipment, including staff time spent copying records, preparing records for copying, and restoring files. This charge is the amount necessary to reimburse the office for actual costs for copying. The charge for special copy work of nonstandard public records shall reflect the total cost, including the staff time necessary to safeguard the integrity of these records.

(d) Before beginning to make the copies, the public records officer or designee may require a deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor. The public records officer or designee may also require the payment of the remainder of the copying costs before providing all the records, or the payment of the costs of copying an installment before providing that installment.

(e) The office will not charge sales tax when it makes copies of public records unless it uses an outside vendor to make the copies.

(2) Costs of mailing. The office may also charge actual costs of mailing, including the cost of the shipping container.

(3) Payment. Payment may be made by cash, check, or money order to the office.)) The following copy fees and payment procedures apply to requests to the office under chapter 42.56 RCW.

(2) Pursuant to RCW 42.56.120 (2)(b), as amended by section 3, chapter 304, Laws of 2017, the office will not be calculating actual costs for copying records because to do so would be unduly burdensome for the following reasons:

(a) The office does not have the resources to conduct a study to determine all its actual copying costs;

(b) To conduct such a study would interfere with other essential agency functions; and

(c) Through the 2017 legislative process, the public and requestors have commented on and been informed of authorized fees and costs, including for electronic records.

(3) The office will charge for copies of records consistent with the fee schedule established in RCW 42.56.120(2).

(a) No fee shall be charged for the inspection of public records or locating public documents and making them available for copying, unless another cost applies such as a copy fee;

(b) Fifteen cents per page for photocopies of public records, printed copies of electronic public records when requested by the person requesting records, or for the use of agency equipment to photocopy public records;

(c) Ten cents per page for public records scanned into an electronic format or for the use of agency equipment to scan the records;

(d) Five cents per each four electronic files or attachments uploaded to email, cloud-based data storage service, or other means of electronic delivery;

(e) Ten cents per gigabyte for the transmission of public records in an electronic format or for the use of agency equipment to send the records electronically;

(f) The cost of any digital storage media or device provided by the office, the cost of any envelope or container used to mail the copies to the requestor, and the cost of any postage or delivery charge;

(g) The office will not charge sales tax when it makes copies of public records unless it uses an outside vendor to make the copies;

(h) A requestor may ask the office to provide, and if requested the office shall provide, an estimated summary of the applicable charges before any copies or scans are made and the requestor may revise the request to reduce the number of copies to be made and reduce the applicable charges;

(i) The office shall not impose copying charges under this section for access to or downloading of records that the agency routinely posts on its public internet web site prior to receipt of a request unless the requestor has specifically requested that the agency provide copies of such records through other means;

(j) The office shall take reasonable steps to provide the records in the most efficient manner available to the agency in its normal operations;

(k) The charges for copying methods used by the office are summarized in the fee schedule available on the office's web site at www.rco.wa.gov.

(4) Fee waivers are an exception and are available for some small requests under the following conditions:

It is within the discretion of the public records officer to waive copying fees when: (a) All of the records responsive to an entire request are paper copies only and are twenty-five or fewer pages; or (b) all of the records responsive to an entire request are electronic and can be provided in a single email with attachments of a size totaling no more than the equivalent of one hundred printed pages. If that email for any reason is not deliverable, records will be provided through another means of delivery, and the requestor will be charged in accordance with this rule.

(5) The public records officer may require advanced payment. An advance deposit of twenty-five percent of the estimated fees may be required when the fees for an installment or an entire request, or customized service charge, exceeds twenty-five dollars.

(6) All required fees must be paid in advance of release of the copies or an installment of copies, or in advance of when a deposit is required. The office will notify the requestor of when payment is due.

(7) Payment should be made by check or money order to the recreation and conservation office. The office will not accept cash payment.

(8) The office will close a request when a requestor fails by the payment date to pay in the manner prescribed for records, an installment of records, or a required deposit.