WSR 25-07-075
PROPOSED RULES
ENVIRONMENTAL AND
LAND USE HEARINGS OFFICE
[Filed March 17, 2025, 9:48 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 24-08-014.
Title of Rule and Other Identifying Information: Chapter 198-14 WAC, Public records.
Hearing Location(s): On May 2, 2025, at 10:00 a.m., via Zoom at https://eluho-wa-gov.zoom.us/j/87938757276, Meeting ID 879 3875 7276; or One-tap mobile +12532050468,,87938757276# US, +12532158782,,87938757276# US (Tacoma); or at 1111 Israel Road S.W., Suite 301, Tumwater, WA 98501. Find your local number at https://eluho-wa-gov.zoom.us/u/kcZ73TjcRx.
Date of Intended Adoption: May 30, 2025.
Submit Written Comments to: Jamie Merly, 1111 Israel Road S.W., Suite 301, Tumwater, WA 98501, email Jamie.Merly@eluho.wa.gov, beginning 8:00 a.m. on March 17, 2025, by 5:00 p.m. on May 5, 2025.
Assistance for Persons with Disabilities: Contact Jamie Merly, phone 360-485-1282, email Jamie.Merly@eluho.wa.gov, by May 1, 2025.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Amends the section on the processing of public records requests to clarify the process for giving notice to persons affected by disclosure; clarifies the public records officer's review for exemptions, adding review under the Climate Commitment Act (act); updates language to be gender neutral; amends the exemptions section to add the act auctions statute to the list of statutes incorporated by reference; and adds clarifying language that the environmental and land use hearings office (ELUHO) is prohibited from disclosing confidential and exempt information related to the act cap and invest program.
Reasons Supporting Proposal: The rule changes provide clarity to ELUHO public records requestors about ELUHO's public records processes, including ELUHO's prohibition from disclosing information deemed confidential and exempt under the act cap and invest program, RCW
70A.65.100(9); they align with current business standards respecting gender nonbinary designations.
Statute Being Implemented: Chapter
42.56 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: ELUHO, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Jamie Merly, 1111 Israel Road S.W., Tumwater, WA 98501, 360-485-1282.
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. ELUHO is not specifically listed in RCW
34.05.328 (5)(a)(i) and does not intend to make this section voluntarily applicable to this rule update per subsection (5)(a)(ii). Unless subsection (5)(a)(ii) is invoked by the joint administrative rules [review] committee after filing the CR-102, no cost-benefit analysis is required.
Scope of exemption for rule proposal from Regulatory Fairness Act requirements:
Is not exempt.
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. These rule changes do not alter the charges ELUHO may apply for providing public records requests under WAC 198-14-090.
March 17, 2025
Jamie Merly, Director
Legal and Administrative Services
OTS-6033.1
AMENDATORY SECTION(Amending WSR 12-03-042, filed 1/10/12, effective 2/10/12)
WAC 198-14-060Processing of public records requests—General.
(1) Providing "fullest assistance." By statute, ELUHO must adopt rules which provide for how it will "provide full access to public records," "protect records from damage or disorganization," "prevent excessive interference with other essential functions of the agency," provide "fullest assistance" to requestors, and provide the "most timely possible action" on public records requests. The public records officer or designee will process requests in the order allowing the most requests to be processed in the most efficient manner.
(2) Acknowledging receipt of request. Within five business days of receipt of the request, the public records officer will do one or more of the following:
(a) Make the records available for inspection or copying;
(b) If copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon, send the copies to the requestor;
(c) Provide a reasonable estimate of when records will be available; or
(d) If the request is unclear or does not sufficiently identify the requested records, request clarification from the requestor. Such clarification may be requested and provided by telephone or in writing. The public records officer or designee may revise the estimate of when records will be available; or
(e) Deny the request and provide a written statement specifying the reasons for denial.
(3) Failure to respond. If ELUHO does not respond in writing within five business days of receipt of the request for disclosure, the requestor is encouraged to contact the public records officer to inquire into the status of the public records request.
(4) Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may((, prior to providing the records,)) give notice to ((such others whose rights may be affected by the disclosure))persons named in the record or to whom a record specifically pertains, that release of the record has been requested. Such notice ((should))may be given so as to make it possible ((for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary,))to seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.
(5)
Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part.
The public records officer will review the requested records to determine whether any record, in whole or in part, includes information exempt under the Public Records Act, chapter 42.56 RCW, or the Climate Commitment Act, chapter 70A.65 RCW; or, under another provision of law.If ELUHO believes that a record is exempt from disclosure and should be withheld, the public records officer will state the specific exemption relied upon and provide a brief explanation of why the record or a portion of the record is being withheld from disclosure. If only a portion of a 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 requestor the basis for redaction.
(6) Inspection of records.
(a) Consistent with other demands, ELUHO shall promptly provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter any document. Access to file cabinets, shelves, or storage areas is restricted to ELUHO employees, who shall be present during the inspection. The requestor shall indicate which documents he or she wishes the agency to copy.
(b) The requestor must claim or review the assembled records within ((thirty))30 days of ELUHO's notification to him or her that the records are available for inspection or copying. ELUHO will notify the requestor in writing of this requirement and inform the requestor that he or she should contact the agency to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the ((thirty))30-day period or make other arrangements, ELUHO may close the request and refile the assembled records. Other public records requests can be processed ahead of a subsequent request by the same person for the same or almost identical records, which can be processed as a new request.
(7) Providing copies of records. After inspection is complete, the public records officer or designee shall make the requested copies or arrange for copying.
(8) Providing records in installments. When the request is for a large number of records, the public records officer or designee may provide access for inspection and copying in installments, if he or she reasonably determines that it would be practical to provide the records in that way. If, within ((thirty))30 days, the requestor fails to inspect the entire set of records, or one or more of the installments that have been made available for inspection, the public records officer or designee may stop searching for the remaining records and close the request.
(9) Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the public records officer or designee will indicate that ELUHO has completed a diligent search for the requested records and made any located nonexempt records available for inspection.
(10) Closing withdrawn or abandoned request. When the requestor either withdraws the request or fails to fulfill ((his or her))the requestor's obligations to inspect the records or pay the deposit or final payment for the requested copies, the public records officer will close the request and indicate to the requestor that ELUHO has closed the request.
(11) Later discovered documents. If, after ELUHO has informed the requestor that it has provided all available records, ELUHO becomes aware of additional responsive documents existing at the time of the request, it will promptly inform the requestor of the additional documents and provide them on an expedited basis.
AMENDATORY SECTION(Amending WSR 12-03-042, filed 1/10/12, effective 2/10/12)
WAC 198-14-080Exemptions.
(1) The Public Records Act provides that a number of types of documents are exempt from public inspection and copying. In addition, documents are exempt from disclosure if any "other statute" exempts or prohibits disclosure.
(2) ELUHO incorporates by reference the exemptions to the act including, but not limited to, the following:
RCW
42.56.270 Financial, commercial, and proprietary information;
RCW
42.56.280 Preliminary drafts, notes, recommendations, and intra-agency memorandums;
RCW 70A.65.100(9) Climate Commitment Act auctions.
(3) ELUHO is prohibited by statute from disclosing lists of individuals for commercial purposes.
(4) ELUHO is prohibited by statute from disclosing records containing information deemed confidential and exempt under RCW 70A.65.100(9) related to the Climate Commitment Act Cap and Invest Program.