WSR 18-04-107 PROPOSED RULES DEPARTMENT OF CORRECTIONS [Filed February 6, 2018, 4:33 p.m.] Original Notice. Preproposal statement of inquiry was filed as WSR 18-01-008. Title of Rule and Other Identifying Information: Chapter 137-08 WAC, Public records—Disclosure. Hearing Location(s): On March 13, 2018, at 2-3 p.m., at the Department of Corrections, Headquarters Building, 7345 Linderson Way S.W., Room 1034, Tumwater, WA 98501. Please bring a driver's license or other state I.D. and check-in with security at the first floor reception desk. Date of Intended Adoption: March 15, 2018. Submit Written Comments to: Debra Eisen, Department of Corrections, Contracts and Legal Affairs, P.O. Box 41114, Olympia, WA 98504, email debra.eisen@doc.wa.gov, by March 7, 2018. Assistance for Persons with Disabilities: Contact Debra Eisen, phone 360-725-8363, email debra.eisen@doc.wa.gov, by March 7, 2018. Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this rule update is both a general update and to ensure compliance by the department of corrections with changes to the Public Records Act (PRA), chapter 42.56 RCW, effective July 23, 2017. The department has declared that it will be "unduly burdensome" to calculate actual costs associated with providing copies of requested public records and so, to be in full compliance with PRA, will utilize the statutory default fee schedule created by the legislature in the 2017 amendments. These changes will establish allowable charges for electronically provided records and lower the department's hard copy fee to align with the default fee outlined in PRA. Reasons Supporting Proposal: Statutory compliance. Statutory Authority for Adoption: RCW 72.01.090 Rules and regulations. Statute Being Implemented: RCW 42.56.120 Charges for copying, PRA. Rule is not necessitated by federal law, federal or state court decision. Name of Proponent: Washington state department of corrections, governmental. Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Denise Vaughan, 7345 Linderson Way S.W., Tumwater, WA 98501, 360-725-8854. 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 change is statutorily required and will, in part, reduce fees for requesters of public records. 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. The department utilized the statutory default fee schedule, created by the legislature, to arrive at both hard copy and electronic fees to charge requesters. February 6, 2018 Stephen Sinclair Secretary
AMENDATORY SECTION (Amending WSR 07-12-073, filed 6/5/07, effective 7/6/07)
WAC 137-08-010 Purpose.
The purpose of this chapter ((shall be)) is to ensure compliance by the department of corrections with the provisions of the Public Records Act, chapter 42.56 RCW.
AMENDATORY SECTION (Amending WSR 08-04-045, filed 1/31/08, effective 3/2/08)
WAC 137-08-060 Public records available.
The department ((shall at all times)) will take the most timely ((possible action on requests for disclosure, and shall be required to respond)) action possible under the circumstances in responding to public records requests submitted to the agency. Every public records request must be provided an initial response in writing within five ((working)) business days of receipt of the request ((for disclosure. The department's failure to so respond shall entitle the person seeking disclosure to petition the public disclosure officer pursuant to WAC 137-08-140)).
AMENDATORY SECTION (Amending WSR 86-10-010, filed 4/29/86)
WAC 137-08-070 Public ((disclosure)) records officer.
The department ((shall)) will designate a public ((disclosure)) records officer, ((located in the state administrative office,)) who ((shall)) will be responsible for implementing the department's rules regarding disclosure of public records, coordination of staff in this regard, and generally ((insuring)) ensuring compliance by ((the)) staff with public records disclosure requirements.
AMENDATORY SECTION (Amending WSR 82-04-023, filed 1/26/82)
WAC 137-08-080 Public ((disclosure)) records coordinators.
((Each departmental administrative unit, for example, each institution, shall)) The department will designate from among its employees ((at least one)) public ((disclosure)) records coordinators, who ((shall)) will:
(1) Have responsibility to respond to written requests for disclosure of the department's nonexempt public records located in that ((office)) location; and
(2) ((Refer the person requesting disclosure to any other office where the record is located, and assist further in the disclosure process; and
(3) Verify, if necessary, the identity of any person requesting information.)) Be responsible to gather records from staff and provide them in response to any public records request pertaining to their location.
AMENDATORY SECTION (Amending WSR 08-04-045, filed 1/31/08, effective 3/2/08)
WAC 137-08-090 Request for public records.
(1) All requests for the disclosure of a public record, other than requests by incarcerated ((offenders)) individuals for inspection of their health record or central file must be submitted in writing directly to the Department of Corrections Public Records Officer at P.O. Box 41118, Olympia, WA 98504 or via email at publicdisclosureunit@doc1.wa.gov identifying the ((record)) record(s) sought with reasonable certainty. The written request should include:
(a) The name of the person requesting the record and their contact information;
(b) The calendar date on which the request is made; and
(c) The records requested.
Incarcerated ((offenders)) individuals under the authority of the department of corrections ((shall)) will submit requests to inspect their own health record, under chapter 70.02 RCW, or central file to the records manager at the facility in which((,)) they are currently incarcerated. For all other requests, incarcerated individuals must submit the request to the public records officer at the address listed in this subsection.
(2) A request ((for disclosure shall be made during customary business hours.
(3) If the public record contains material exempt from disclosure pursuant to law, including those laws cited in WAC 137-08-150, the department must provide the person requesting disclosure with a written explanation for the nondisclosure, pursuant to WAC 137-08-130.
(4) Any person continuing to seek disclosure, after having received a written explanation for nondisclosure pursuant to WAC 137-08-130, may request a review under the provisions of WAC 137-08-140.
(5) When a person's identity is relevant to an exemption, that person may be required to provide personal identification.
(6) Nothing in this section or elsewhere in this chapter shall be construed to require the department to compile statistics or other information from material contained in public records, where doing so would unduly interfere with other essential functions of the department and is not required for litigation by rules of pretrial discovery)) received after business hours will be considered to have been received the following business day.
AMENDATORY SECTION (Amending WSR 85-13-020, filed 6/10/85)
WAC 137-08-110 Fees—Inspection and copying.
(((1) No fee shall be charged for the inspection of public records.
(2) The department shall collect a fee of twenty cents per page plus postage to reimburse itself for the cost of providing copies of public records.
(3) Nothing contained in this section shall preclude the department from agreeing to exchange or provide copies of manuals or other public records with other state or federal agencies, whenever doing so is in the best interest of the department.
(4) The secretary of the department or his designee is authorized to waive any of the foregoing copying costs.)) (1) The following copy fees and payment procedures apply to requests to the department under chapter 42.56 RCW and received on or after July 23, 2017.
(2) Pursuant to RCW 42.56.120 (2)(b), the department is not calculating all actual costs for copying records because to do so would be unduly burdensome for the following reasons:
(a) The department does not have the resources to conduct a study to determine all of its actual copying costs;
(b) Through the 2017 legislative process, the public including requestors have commented on and been informed of authorized fees and costs, including for electronic records, provided in RCW 42.56.120 (2)(b) and (c), (3) and (4).
(3) The department will charge for copies of records pursuant to the default fees in RCW 42.56.120 (2)(b) and (c). The department will charge for any customized services used pursuant to RCW 42.56.120(3). Under RCW 42.56.430, the department may charge other copy fees authorized by statutes outside of chapter 42.56 RCW. The charges for copying methods used by the department are summarized in the fee schedule available on the department's web site at www.doc.wa.gov.
(4) Requestors are required to pay for copies in advance of receiving the records.
(5) No fee will be charged for the inspection of public records.
(6) No fee will be charged to:
(a) Law enforcement agencies that have made a request to the department for the purpose of active criminal investigation and/or prosecution.
(b) Other state agencies.
(c) Additional waivers may be made at the discretion of the public records officer.
(7) The public records officer may require an advance deposit of ten percent of the estimated fees or customized service charge as allowable under RCW 42.56.120(4).
(8) Responsive records may be provided in installments as allowable under RCW 42.56.120(4). Each installment must be either paid for or inspected prior to fulfilling the remainder of the request.
(9) Payment should be made by check or money order to the department of corrections. If, at the discretion of the public records officer cash payment is permitted, then the public records officer will also determine the denomination of bills and coins that will be accepted.
(10) The department will close a request when the requestor fails within thirty days to pay for a request or an installment or for the required ten percent deposit.
AMENDATORY SECTION (Amending WSR 82-04-023, filed 1/26/82)
WAC 137-08-120 ((Protection)) Inspection of public records.
((Public records shall be disclosed)) Other than incarcerated individuals inspecting their own health record or central file, public records will be inspected at department headquarters. This inspection will occur only in the presence of a public ((disclosure coordinator)) records or correctional records staff person or his or her designee, who ((shall)) will withdraw the records if the person requesting disclosure acts in a manner which ((will)) could damage or substantially disorganize the records or interfere excessively with other essential functions of the department. ((This section shall not be construed to prevent the department from accommodating a client by use of the mails in the disclosure process.))
AMENDATORY SECTION (Amending WSR 82-04-023, filed 1/26/82)
WAC 137-08-130 ((Disclosure)) Exemption procedure.
(1) The public ((disclosure coordinator shall)) records staff will review file materials prior to disclosure.
(2) If the file does not contain materials exempt from disclosure, the ((public disclosure coordinator shall)) staff person will ensure full ((disclosure)) production.
(3) When a person's identity is relevant to an exemption, that person may be required to provide personal identification.
(4) If the file does contain materials exempt from disclosure, ((the public disclosure coordinator shall deny disclosure)) under chapter 42.56 RCW or other statutes, the staff person responding will deny production of those exempt portions of the file, and ((shall)) will, at the time of ((the)) denial, in writing, clearly specify the reasons for the denial of ((disclosure)) production, including a statement of the specific exemptions or reasons authorizing the withholding of the record and a brief explanation of how the exemption or reason applies. The remaining, nonexempt materials ((shall)) will be fully disclosed.
AMENDATORY SECTION (Amending WSR 86-10-010, filed 4/29/86)
WAC 137-08-140 Review of denial of disclosure.
(1) If the person requesting disclosure disagrees with the decision ((of a public disclosure coordinator denying disclosure of a public record)) or the processing of their request, such person may petition the department's public ((disclosure)) records appeals officer for review of the decision denying disclosure. The form used by ((the public disclosure coordinator)) public records staff to deny disclosure of a public record ((shall)) will clearly indicate this right of review.
(2) Within ((ten working)) thirty calendar days after receipt of a petition for review of a decision ((denying disclosure, the public disclosure officer shall review the decision denying disclosure, and advise the petitioner, in writing, of the public disclosure officer's decision on the petition. Such review shall be deemed completed at the end of the second business day following denial of disclosure, and shall constitute final agency action for the purposes of judicial review)), the department will review the decision and advise the requestor, in writing, of its decision.
AMENDATORY SECTION (Amending WSR 08-01-026, filed 12/10/07, effective 1/10/08)
WAC 137-08-180 Records index.
((The)) A general records index outlining common record types maintained by the agency may be accessed on the department's web site in the public disclosure section at((:
http://www.doc.wa.gov/aboutdoc/publicdisclosure.asp)) http://www.doc.wa.gov/information/records/request.htm.
REPEALER
The following sections of the Washington Administrative Code are repealed:
| ||||||||||||