WSR 20-15-137
PROPOSED RULES
EMPLOYMENT SECURITY DEPARTMENT
[Filed July 21, 2020, 12:49 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 19-16-085.
Title of Rule and Other Identifying Information: Data privacy, the rule making is adding WAC 192-15-500 Purpose, 192-15-510 Access to records or information by government agencies, 192-15-520 Response to subpoenas, 192-15-530 Access to records—Operation and management, 192-15-540 Consent to release of records or information, and 192-15-550 Disclosure related to employment security programs.
The rule making is repealing WAC 192-15-010 Purpose, 192-15-020 Definitions, 192-15-030 Description of central and field organization of employment security department, 192-15-040 Procedures for obtaining public records—Designation of departmental employees responsible for public records, 192-15-050 Commissioner's review of denials of public records requests, 192-15-060 Access to individual or employing unit records or information by government agencies—RCW 50.13.060, 192-15-070 Response to subpoenas—RCW 50.13.070, 192-15-080 Access to public records for operation and management purposes—RCW 50.13.080, 192-15-090 Consent to release of records or information—RCW 50.13.100, 192-15-100 Disclosure related to employment security programs, 192-15-110 Public records available, 192-15-120 Office hours, 192-15-130 Copying, 192-15-140 Protection of public records, 192-15-150 Records index—Available material, 192-15-160 Responsible addressee, and 192-15-170 Forms.
Hearing Location(s): On August 27, 2020, at 10:00 a.m.
Telephone conference, call 360-407-3790. When prompted for the Conference ID number, press 51750 and then the # key. Hearing is being held remotely due to the COVID-19 pandemic.
Date of Intended Adoption: August 28, 2020.
Submit Written Comments to: Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, email rules@esd.wa.gov, fax 844-652-7096, by August 27, 2020.
Assistance for Persons with Disabilities: Contact Teresa Eckstein, phone 360-507-9890, fax 360-586-4600, TTY relay 711, email teckstein@es.wa.gov [teckstein@esd.wa.gov], by August 20, 2020.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The employment security department (ESD) is seeking to implement public disclosure and privacy rules in accordance with requirements determined by ESB 5439 (chapter 81, Laws of 2019). The rule making repeals WAC 192-15-101, 192-15-020, 192-15-030, 192-15-040, 192-15-050, 192-15-060, 192-15-070, 192-15-080, 192-15-090, 192-15-100, 192-15-110, 192-15-120, 192-15-130, 192-15-140, 192-15-150, 192-15-160, and 192-15-170 regarding public disclosure and privacy of information. Public record disclosure is the subject of a separate rule making, as filed in WSR 19-18-010.
Reasons Supporting Proposal: ESB 5439 (chapter 81, Laws of 2019) directed the department to update data privacy rules.
Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to ESD. RCW 50.13.030 provides the department with specific rule-making authority regarding the privacy of the department's records.
Statute Being Implemented: RCW 50.13.030, 50.13.040, 50.13.060, 50.13.070, 50.13.100, 50.13.110, and 50.13.120.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: ESD, governmental.
Name of Agency Personnel Responsible for Drafting: Scott Michael, Olympia, Washington, 360-890-3448; Implementation: Robert Page, Olympia, Washington, 360-890-3504; and Enforcement: Rebekah O'Hara, Olympia, Washington, 360-890-3755.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, email Rules@esd.wa.gov, https://esd.wa.gov/newsroom/ui-rule-making/.
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 rule imposes no costs on employers. Instead, the rules provide clarity surrounding data privacy standards as directed by the legislature (chapter 81, Laws of 2019).
July 21, 2020
Dan Zeitlin
Policy Director
Chapter 192-15 WAC
((PUBLIC DISCLOSURE AND PRIVACY OF INFORMATION))DATA PRIVACY
NEW SECTION
WAC 192-15-500Purpose.
Interpret and implement the provisions of chapter 50.13 RCW concerning the privacy and confidentiality of information or records held by the employment security department.
NEW SECTION
WAC 192-15-510Access to records or information by government agencies.
(1) Applications by government agencies for information or records deemed private and confidential by chapter 50.13 RCW shall be made:
(a) To the public records officer as defined in WAC 192-02-020(2); and
(b) Pursuant to WAC 192-02-060.
(2) If the public records officer:
(a) Is reasonably satisfied that the application meets the requirements of RCW 50.13.060, the department will provide access to the information or records.
(b) Is not reasonably satisfied that the application meets the requirements of RCW 50.13.060, the department may refuse to provide access. The department will provide notification of the denial as prescribed in WAC 192-02-130.
(3) The department shall establish procedures for providing records used for detection of fraud by claimants under various social programs administered by government agencies pursuant to RCW 50.13.060(5). Further investigation of department files concerning these individuals may be accomplished only if the normal requirements of RCW 50.13.060 are met.
(4) The term "other official of the agency" as used in RCW 50.13.060 (1)(b) means an employee who has substantial responsibility for the operation of the requesting agency or for one or more of its programs or administrative units.
NEW SECTION
WAC 192-15-520Response to subpoenas.
An employee called to testify in a judicial or administrative proceeding shall not disclose information or records deemed private and confidential under chapter 50.13 RCW, unless:
(1) The presiding officer makes a finding that the need for the disclosure outweighs any reasons for the privacy and confidentiality of the records or information; or
(2) The employee is responding to a subpoena or other compulsory process containing a finding by the presiding officer that the need for the disclosure outweighs any reasons for the privacy and confidentiality of the records or information.
NEW SECTION
WAC 192-15-530Access to records—Operation and management.
(1) The department may provide incidental access to private or confidential information and records by private parties who are assisting the department in such areas as data processing and collection of employment security contributions pursuant to RCW 50.13.080.
(2) Persons provided incidental access to private and confidential records:
(a) Are bound by the rules of confidentiality and privacy applicable to departmental employees;
(b) Will be monitored by the department to ensure that private and confidential information or records are being handled correctly; and
(c) Are subject to any penalties provided under state or federal law for the breach of any confidentiality provision.
NEW SECTION
WAC 192-15-540Consent to release of records or information.
(1) Consent to release of information or records deemed private and confidential under RCW 50.13.100 shall be liberally interpreted so that the department may release information or records to third parties who supply the department with reasonable written or oral assurances of their identity and the department already has a release on file that meets the requirements of subsection (2) of this section.
(2) The release provided by a third party must include:
(a) Specifically identifying information of the data to be disclosed;
(b) Acknowledgment that department information will be accessed to obtain the information;
(c) The specific purpose or purposes for which the information is sought and a statement that information obtained under the release will only be used for that purpose or purposes;
(d) The parties who may receive the information disclosed;
(e) A written or electronic signature by the individual or employer being represented;
(f) A statement that provides the purpose of the release, which shall be limited to:
(i) Providing a service or benefit to the individual signing the release; or
(ii) Carrying out the administration or evaluation of a public program.
(3) In cases where a certain record contains information about more than one individual or employing unit:
(a) All individuals or employing units concerned must give consent before a record may be released or disclosed to other than the individuals or employing units;
(b) Records for individuals or employing units that give consent may be provided if the records for individuals or employing units that do not give consent are redacted; or
(c) The request may be denied if all individuals and employing units do not provide consent and records are not able to be redacted in order to protect the privacy of individuals or employing units that do not give consent.
(4) An attorney who can provide reasonable written assurance that they represent an interested party, as defined by WAC 192-04-040, in a proceeding before the appeal tribunal or commissioner, may have access to confidential information or records that are material to the issues in that proceeding.
NEW SECTION
WAC 192-15-550Disclosure related to employment security programs.
Chapter 50.13 RCW shall not be interpreted to prevent the employment security department from:
(1) Disclosing information in carrying out the department's duties under Title 50 RCW or under any other program for which the department is responsible;
(2) Disclosing information to the unemployment insurance agencies of other states when such disclosure relates to the administration of the unemployment insurance law of the requesting state; or
(3) Disclosing information when such disclosure is required by the federal government in connection with or as a condition of funding for a program being administered by the department.
REPEALER
The following sections of the Washington Administrative Code are repealed:
WAC 192-15-010
Purpose.
WAC 192-15-020
Definitions.
WAC 192-15-030
Description of central and field organization of employment security department.
WAC 192-15-040
Procedures for obtaining public records—Designation of departmental employees responsible for public records.
WAC 192-15-050
Commissioner's review of denials of public records requests.
WAC 192-15-060
Access to individual or employing unit records or information by government agencies—RCW 50.13.060.
WAC 192-15-070
Response to subpoenas—RCW 50.13.070.
WAC 192-15-080
Access to public records for operation and management purposes—RCW 50.13.080.
WAC 192-15-090
Consent to release of records or information—RCW 50.13.100.
WAC 192-15-100
Disclosure related to employment security programs.
WAC 192-15-110
Public records available.
WAC 192-15-120
Office hours.
WAC 192-15-130
Copying.
WAC 192-15-140
Protection of public records.
WAC 192-15-150
Records index—Available material.
WAC 192-15-160
Responsible addressee.
WAC 192-15-170
Forms.