H-4723

AN ACT Relating to open government; amending RCW 42.17.020, 42.17.260, 42.17.290, 42.17.320, 42.17.330, 42.17.340, 42.30.020, 42.30.060, 42.30.070, 42.30.075, 42.30.080, 42.30.110, 42.30.120, and 42.30.900; reenacting and amending RCW 42.17.310; adding new sections to chapter 42.17 RCW; adding new sections to chapter 42.30 RCW; creating new sections; repealing RCW 42.32.030; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 42.17.020 and 1991 sp.s. c 18 s 1 are each amended to read as follows:

(1) "Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.

(2) "Ballot proposition" means any "measure" as defined by RCW 29.01.110, or any initiative, recall, or referendum proposition proposed to be submitted to the voters of the state or any municipal corporation, political subdivision, or other voting constituency from and after the time when the proposition has been initially filed with the appropriate election officer of that constituency prior to its circulation for signatures.

(3) "Depository" means a bank designated by a candidate or political committee pursuant to RCW 42.17.050.

(4) "Treasurer" and "deputy treasurer" mean the individuals appointed by a candidate or political committee, pursuant to RCW 42.17.050, to perform the duties specified in that section.

(5) "Candidate" means any individual who seeks election to public office. An individual shall be deemed to seek election when he first:

(a) Receives contributions or makes expenditures or reserves space or facilities with intent to promote his candidacy for office; or

(b) Announces publicly or files for office.

(6) "Commercial advertiser" means any person who sells the service of communicating messages or producing printed material for broadcast or distribution to the general public or segments of the general public whether through the use of newspapers, magazines, television and radio stations, billboard companies, direct mail advertising companies, printing companies, or otherwise.

(7) "Commission" means the agency established under RCW 42.17.350.

(8) "Compensation" unless the context requires a narrower meaning, includes payment in any form for real or personal property or services of any kind: PROVIDED, That for the purpose of compliance with RCW 42.17.241, the term "compensation" shall not include per diem allowances or other payments made by a governmental entity to reimburse a public official for expenses incurred while the official is engaged in the official business of the governmental entity.

(9) "Continuing political committee" means a political committee that is an organization of continuing existence not established in anticipation of any particular election campaign.

(10) "Contribution" includes a loan, gift, deposit, subscription, forgiveness of indebtedness, donation, advance, pledge, payment, transfer of funds between political committees, or transfer of anything of value, including personal and professional services for less than full consideration, but does not include interest on moneys deposited in a political committee's account, ordinary home hospitality and the rendering of personal services of the sort commonly performed by volunteer campaign workers, or incidental expenses personally incurred by volunteer campaign workers not in excess of fifty dollars personally paid for by the worker. Volunteer services, for the purposes of this chapter, means services or labor for which the individual is not compensated by any person. For the purposes of this chapter, contributions other than money or its equivalents shall be deemed to have a money value equivalent to the fair market value of the contribution. Sums paid for tickets to fund-raising events such as dinners and parties are contributions; however, the amount of any such contribution may be reduced for the purpose of complying with the reporting requirements of this chapter, by the actual cost of consumables furnished in connection with the purchase of the tickets, and only the excess over the actual cost of the consumables shall be deemed a contribution.

(11) "Elected official" means any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office.

(12) "Election" includes any primary, general, or special election for public office and any election in which a ballot proposition is submitted to the voters: PROVIDED, That an election in which the qualifications for voting include other than those requirements set forth in Article VI, section 1 (Amendment 63) of the Constitution of the state of Washington shall not be considered an election for purposes of this chapter.

(13) "Election campaign" means any campaign in support of or in opposition to a candidate for election to public office and any campaign in support of, or in opposition to, a ballot proposition.

(14) "Expenditure" includes a payment, contribution, subscription, distribution, loan, advance, deposit, or gift of money or anything of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make an expenditure. The term "expenditure" also includes a promise to pay, a payment, or a transfer of anything of value in exchange for goods, services, property, facilities, or anything of value for the purpose of assisting, benefiting, or honoring any public official or candidate, or assisting in furthering or opposing any election campaign. For the purposes of this chapter, agreements to make expenditures, contracts, and promises to pay may be reported as estimated obligations until actual payment is made. The term "expenditure" shall not include the partial or complete repayment by a candidate or political committee of the principal of a loan, the receipt of which loan has been properly reported.

(15) "Final report" means the report described as a final report in RCW 42.17.080(2).

(16) "Gift," for the purposes of RCW 42.17.170 and 42.17.2415, means a rendering of anything of value in return for which reasonable consideration is not given and received and includes a rendering of money, property, services, discount, loan forgiveness, payment of indebtedness, or reimbursements from or payments by persons (other than the federal government, or the state of Washington or any agency or political subdivision thereof) for travel or anything else of value. The term "reasonable consideration" refers to the approximate range of consideration that exists in transactions not involving donative intent. However, the value of the gift of partaking in a single hosted reception shall be determined by dividing the total amount of the cost of conducting the reception by the total number of persons partaking in the reception. "Gift" for the purposes of RCW 42.17.170 and 42.17.2415 does not include:

(a) A gift, other than a gift of partaking in a hosted reception, with a value of fifty dollars or less;

(b) The gift of partaking in a hosted reception if the value of the gift is one hundred dollars or less;

(d) Informational material that is transferred for the purpose of informing the recipient about matters pertaining to official business of the governmental entity of which the recipient is an official or officer, and that is not intended to confer on that recipient any commercial, proprietary, financial, economic, or monetary advantage, or the avoidance of any commercial, proprietary, financial, economic, or monetary disadvantage;

(e) A gift that is not used and that, within thirty days after receipt, is returned to the donor or delivered to a charitable organization. However, this exclusion from the definition does not apply if the recipient of the gift delivers the gift to a charitable organization and claims the delivery as a charitable contribution for tax purposes;

(f) A gift given under circumstances where it is clear beyond any doubt that the gift was not made as part of any design to gain or maintain influence in the governmental entity of which the recipient is an officer or official or with respect to any legislative matter or matters of that governmental entity; or

(g) A gift given prior to September 29, 1991.

(17) "Immediate family" includes the spouse, dependent children, and other dependent relatives, if living in the household.

(18) "Legislation" means bills, resolutions, motions, amendments, nominations, and other matters pending or proposed in either house of the state legislature, and includes any other matter that may be the subject of action by either house or any committee of the legislature and all bills and resolutions that, having passed both houses, are pending approval by the governor.

(19) "Lobby" and "lobbying" each mean attempting to influence the passage or defeat of any legislation by the legislature of the state of Washington, or the adoption or rejection of any rule, standard, rate, or other legislative enactment of any state agency under the state Administrative Procedure Act, chapter 34.05 RCW. Neither "lobby" nor "lobbying" includes an association's or other organization's act of communicating with the members of that association or organization.

(20) "Lobbyist" includes any person who lobbies either in his own or another's behalf.

(21) "Lobbyist's employer" means the person or persons by whom a lobbyist is employed and all persons by whom he is compensated for acting as a lobbyist.

(22) "Person" includes an individual, partnership, joint venture, public or private corporation, association, federal, state, or local governmental entity or agency however constituted, candidate, committee, political committee, political party, executive committee thereof, or any other organization or group of persons, however organized.

(23) "Person in interest" means the person who is the subject of a record or any representative designated by that person, except that if that person is under a legal disability, the term "person in interest" means and includes the parent or duly appointed legal representative.

(24) "Political advertising" includes any advertising displays, newspaper ads, billboards, signs, brochures, articles, tabloids, flyers, letters, radio or television presentations, or other means of mass communication, used for the purpose of appealing, directly or indirectly, for votes or for financial or other support in any election campaign.

(25) "Political committee" means any person (except a candidate or an individual dealing with his own funds or property) having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition.

(26) "Public office" means any federal, state, county, city, town, school district, port district, special district, or other state political subdivision elective office.

(27) "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

(28) "Surplus funds" mean, in the case of a political committee or candidate, the balance of contributions that remain in the possession or control of that committee or candidate subsequent to the election for which the contributions were received, and that are in excess of the amount necessary to pay remaining debts incurred by the committee or candidate prior to that election. In the case of a continuing political committee, "surplus funds" mean those contributions remaining in the possession or control of the committee that are in excess of the amount necessary to pay all remaining debts when it makes its final report under RCW 42.17.065.

(29) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

As used in this chapter, the singular shall take the plural and any gender, the other, as the context requires.

NEW SECTION. Sec. 2. A new section is added to chapter 42.17 RCW under the subchapter heading "public records" to read as follows:

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy.

Sec. 3. RCW 42.17.260 and 1989 c 175 s 36 are each amended to read as follows:

(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records, unless the record falls within the specific exemptions of subsection ((~~(5)~~)) (6) of this section, RCW 42.17.310, 42.17.315, or other statute which exempts or prohibits disclosure of specific information or records. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by RCW 42.17.310 and 42.17.315, an agency shall delete identifying details in a manner consistent with RCW 42.17.310 and 42.17.315 when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing.

(2) For informational purposes, each agency shall publish and maintain a current list containing every law, other than those listed in this chapter, that the agency believes exempts or prohibits disclosure of specific information or records of the agency. An agency's failure to list an exemption shall not affect the efficacy of any exemption.

(3) Each local agency shall maintain and make available for public inspection and copying a current index providing identifying information as to the following records issued, adopted, or promulgated after January 1, 1973:

(a) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

(b) Those statements of policy and interpretations of policy, statute, and the Constitution which have been adopted by the agency;

(d) Planning policies and goals, and interim and final planning decisions;

(e) Factual staff reports and studies, factual consultant's reports and studies, scientific reports and studies, and any other factual information derived from tests, studies, reports, or surveys, whether conducted by public employees or others; and

(f) Correspondence, and materials referred to therein, by and with the agency relating to any regulatory, supervisory, or enforcement responsibilities of the agency, whereby the agency determines, or opines upon, or is asked to determine or opine upon, the rights of the state, the public, a subdivision of state government, or of any private party.

((~~(3)~~)) (4) A local agency need not maintain such an index, if to do so would be unduly burdensome, but it shall in that event:

(a) Issue and publish a formal order specifying the reasons why and the extent to which compliance would unduly burden or interfere with agency operations; and

(b) Make available for public inspection and copying all indexes maintained for agency use.

((~~(4) By July 1, 1990,~~)) (5) Each state agency shall, by rule, establish and implement a system of indexing for the identification and location of the following records:

(a) All records issued before July 1, 1990, for which the agency has maintained an index;

(b) Final orders entered after June 30, 1990, that are issued in adjudicative proceedings as defined in RCW 34.05.010(1) and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;

(c) Declaratory orders entered after June 30, 1990, that are issued pursuant to RCW 34.05.240 and that contain an analysis or decision of substantial importance to the agency in carrying out its duties;

(d) Interpretive statements as defined in RCW 34.05.010(8) that were entered after June 30, 1990; and

(e) Policy statements as defined in RCW 34.05.010(14) that were entered after June 30, 1990.

Rules establishing systems of indexing shall include, but not be limited to, requirements for the form and content of the index, its location and availability to the public, and the schedule for revising or updating the index. State agencies that have maintained indexes for records issued before July 1, 1990, shall continue to make such indexes available for public inspection and copying. Information in such indexes may be incorporated into indexes prepared pursuant to this subsection. State agencies may satisfy the requirements of this subsection by making available to the public indexes prepared by other parties but actually used by the agency in its operations. State agencies shall make indexes available for public inspection and copying. State agencies may charge a fee to cover the actual costs of providing individual mailed copies of indexes.

((~~(5)~~)) (6) A public record may be relied on, used, or cited as precedent by an agency against a party other than an agency and it may be invoked by the agency for any other purpose only if‑-

(a) It has been indexed in an index available to the public; or

(b) Parties affected have timely notice (actual or constructive) of the terms thereof.

((~~(6)~~)) (7) This chapter shall not be construed as giving authority to any agency to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies shall not do so unless specifically authorized or directed by law: PROVIDED, HOWEVER, That lists of applicants for professional licenses and of professional licensees shall be made available to those professional associations or educational organizations recognized by their professional licensing or examination board, upon payment of a reasonable charge therefor: PROVIDED FURTHER, That such recognition may be refused only for a good cause pursuant to a hearing under the provisions of chapter 34.05 RCW, the Administrative Procedure Act.

Sec. 4. RCW 42.17.290 and 1975 1st ex.s. c 294 s 16 are each amended to read as follows:

Agencies shall adopt and enforce reasonable rules and regulations, consonant with the intent of this chapter to provide full public access to public records, to protect public records from damage or disorganization, and to prevent excessive interference with other essential functions of the agency. Such rules and regulations shall provide for the fullest assistance to inquirers and the most timely possible action on requests for information. Nothing in this section shall relieve agencies from honoring requests received by mail for copies of identifiable public records.

If a public record request is made at a time when such record exists but is scheduled for destruction in the near future, the agency shall retain possession of the record, and may not destroy or erase the record until the request is resolved.

Sec. 5. RCW 42.17.310 and 1991 c 301 s 13, 1991 c 87 s 13, and 1991 c 23 s 10 1991 c 1 s 1 are each reenacted and amended to read as follows:

(1) The following are exempt from public inspection and copying:

(a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.

(b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy.

(c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would (i) be prohibited to such persons by RCW 82.32.330 or (ii) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

(d) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.

(e) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time ((~~the~~)) a complaint is filed the complainant indicates a desire for disclosure or nondisclosure, such desire shall govern. However, all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath.

(f) Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.

(g) Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, but in no event shall disclosure be denied for more than three years after the appraisal.

(h) Valuable formulae, designs, drawings, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.

(i) Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.

(j) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

(k) Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites.

(l) Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, which discloses or could be used to disclose the identity of a library user.

(m) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for (a) a ferry system construction or repair contract as required by RCW 47.60.680 through 47.60.750 or (b) highway construction or improvement as required by RCW 47.28.070.

(n) Railroad company contracts filed prior to July 28, 1991, with the utilities and transportation commission under RCW 81.34.070, except that the summaries of the contracts are open to public inspection and copying as otherwise provided by this chapter.

(o) Financial and commercial information and records supplied by private persons pertaining to export services provided pursuant to chapter 43.163 RCW and chapter 53.31 RCW.

(p) Financial disclosures filed by private vocational schools under chapter 28C.10 RCW.

(q) Records filed with the utilities and transportation commission or attorney general under RCW 80.04.095 that a court has determined are confidential under RCW 80.04.095.

(r) Financial and commercial information and records supplied by businesses during application for loans or program services provided by chapter 43.163 RCW and chapters 43.31, 43.63A, and 43.168 RCW.

(s) Membership lists or lists of members or owners of interests of units in timeshare projects, subdivisions, camping resorts, condominiums, land developments, or common-interest communities affiliated with such projects, regulated by the department of licensing, in the files or possession of the department.

(t) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.

(u) The residential addresses and residential telephone numbers of employees or volunteers of a public agency which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees or volunteers.

(v) The residential addresses and residential telephone numbers of the customers of a public utility contained in the records or lists held by the public utility of which they are customers.

(w) Information obtained by the board of pharmacy as provided in RCW 69.45.090.

(x) Information obtained by the board of pharmacy or the department of health and its representatives as provided in RCW 69.41.044, 69.41.280, and 18.64.420.

(y) Financial information, business plans, examination reports, and any information produced or obtained in evaluating or examining a business and industrial development corporation organized or seeking certification under chapter 31.24 RCW.

(z) Financial and commercial information supplied to the state investment board by any person when the information relates to the investment of public trust or retirement funds and when disclosure would result in loss to such funds or in private loss to the providers of this information.

(aa) Financial and valuable trade information under RCW 51.36.120.

(bb) Client records maintained by an agency that is a domestic violence program as defined in RCW 70.123.020 or a rape crisis center as defined in RCW 70.125.030.

(cc) Information that identifies a person who, while an agency employee: (i) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in connection with a possible unfair practice under chapter 49.60 RCW against the person; and (ii) requests his or her identity or any identifying information not be disclosed.

(2) Except for information described in subsection (1)(c)(i) of this section and confidential income data exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.

(3) Inspection or copying of any specific records exempt under the provisions of this section may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records is clearly unnecessary to protect any individual's right of privacy or any vital governmental function.

(4) Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

Sec. 6. RCW 42.17.320 and 1975 1st ex.s. c 294 s 18 are each amended to read as follows:

Responses to requests for public records shall be made promptly by agencies. Within five business days of receiving a public record request, an agency must respond by either (1) providing the record; (2) acknowledging that the agency has received the request and providing a reasonable estimate of the time the agency will require to respond to the request; or (3) denying the public record request. In acknowledging receipt of a public record request that is unclear, an agency may ask the requestor to clarify what information the requestor is seeking. If the requestor fails to clarify the request, the agency need not respond to it. Denials of requests must be accompanied by a written statement of the specific reasons therefor. Agencies shall establish mechanisms for the most prompt possible review of decisions denying inspection, and such review shall be deemed completed at the end of the second business day following the denial of inspection and shall constitute final agency action for the purposes of judicial review.

Sec. 7. RCW 42.17.330 and 1975 1st ex.s. c 294 s 19 are each amended to read as follows:

The examination of any specific public record may be enjoined if, upon motion and affidavit by a person, other than an agency or its representative, who is named in the record or to whom the record specifically pertains, the superior court for the county in which the movant resides or in which the record is maintained, finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions. An agency has the option of notifying persons named in the record or to whom a record specifically pertains, that release of a record has been requested. However, this option does not exist where the agency is required by law to provide such notice.

Sec. 8. RCW 42.17.340 and 1987 c 403 s 5 are each amended to read as follows:

(1) Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific public record or class of records. The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.

(2) Upon the motion of any person who believes that an agency has not made a reasonable estimate of the time that the agency requires to respond to a public record request, the superior court in the county in which a record is maintained may require the responsible agency to show that the estimate it provided is reasonable. The burden of proof shall be on the agency to show that the estimate it provided is reasonable.

(3) Judicial review of all agency actions taken or challenged under RCW 42.17.250 through 42.17.320 shall be de novo. Courts shall take into account the policy of this chapter that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Courts may examine any record in camera in any proceeding brought under this section. The court may conduct a hearing based solely on affidavits.

((~~(3)~~)) (4) Any person who prevails against an agency in any action in the courts seeking the right to inspect or copy any public record or the right to receive a response to a public record request within a reasonable amount of time shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. In addition, it shall be within the discretion of the court to award such person an amount not less than five dollars and not to exceed ((~~twenty-five~~)) one hundred dollars for each day that he was denied the right to inspect or copy said public record.

NEW SECTION. Sec. 9. A new section is added to chapter 42.17 RCW under the subchapter heading "public records" to read as follows:

The attorney general's office shall publish, and update when appropriate, a pamphlet, written in plain language, explaining the provisions of the public records subdivision of this chapter.

NEW SECTION. Sec. 10. A new section is added to chapter 42.17 RCW under the subchapter heading "public records" to read as follows:

Whenever a state agency concludes that a public record is exempt from disclosure and denies a person opportunity to inspect or copy a public record for that reason, the person may request the attorney general to review the matter. The attorney general shall provide the person with his or her written opinion on whether the record is exempt.

This section does not apply to the judicial branch or the legislative branch of state government, as such branches remain not subject to this subchapter.

NEW SECTION. Sec. 11. A new section is added to chapter 42.17 RCW under the subchapter heading "public records" to read as follows:

No public agency, public official, public employee, or custodian shall be liable, nor shall a cause of action exist, for any loss or damage based upon the release of a public record if the public agency, public official, public employee, or custodian acted in good faith in attempting to comply with the provisions of this chapter.

NEW SECTION. Sec. 12. The legislature finds that electronic data and electronic records pose a number of challenging public disclosure questions. Included in these challenging questions are how to provide public access to electronic records while balancing personal privacy and vital governmental interests; how to best address requests for electronic records which require agencies to manipulate data; how to open electronic records to public inspection; how to calculate charges for data or products from electronic records, particularly if that data or product is to be used for a commercial purpose; and how public agencies and employees should handle the personal privacy issues associated with electronic mail. The legislature finds that these and other important public policy questions related to electronic records deserve their own specific deliberation with input from all interested parties. The legislature urges the creation of a body to address electronic data issues.

NEW SECTION. Sec. 13. The legislature finds that there is a large and growing number of exemptions of records from public disclosure. The legislature finds that certain types of information are treated inconsistently under current disclosure laws. The legislature further finds that there may be opportunities for consolidation of many individual record exemptions into fewer, broader exemptions. There is a need to thoroughly review both the content and organization of such exemptions.

The legislature recognizes that there is legal uncertainty regarding the status of investigative records under the open records law. It is important that clear statutory direction be provided in this area to ensure reasonable access to such records while protecting the integrity of the investigatory process and privacy interests.

The legislature also finds that certain entities that may have substantial impacts on public policy are not covered by the open public meetings act. Such entities include certain boards, councils, committees, or other groups of similar nomenclature that serve in an advisory capacity. To ensure that public agencies comply with the intent of the open public meetings act, it is important for the legislature to determine which categories of such groups should be covered by the open public meetings act.

The joint select committee on open government shall examine these three issues and shall report back to the legislature with any recommendations for statutory changes by January 1, 1993. In examining these issues, the committee shall provide ample opportunity for input from all interested parties.

Sec. 14. RCW 42.30.020 and 1985 c 366 s 1 are each amended to read as follows:

As used in this chapter unless the context indicates otherwise:

(1) "Public agency" means:

(a) Any state board, commission, committee, authority, council, department, educational institution, or other state agency ((~~which is~~)) whose members are appointed by public officials or that is created by or pursuant to statute, other than courts and the legislature;

(b) Any county, city, school district, special purpose district, or other municipal corporation or political subdivision of the state of Washington;

(c) Any ((~~subagency~~)) standing, special, or advisory committees, boards, commissions, task forces, subcommittees or other subagencies of a public agency which ((is)) are created by or pursuant to statute, charter, ordinance, or ((~~other legislative act~~)) resolution, administrative rule, executive order, or proclamation, including but not limited to planning commissions, library or park boards, commissions, and agencies, but excluding any advisory committee created by any county, city, town, or other local government public agency;

(d) Any policy group whose membership includes representatives of publicly owned utilities formed by or pursuant to the laws of this state when meeting together as or on behalf of participants who have contracted for the output of generating plants being planned or built by an operating agency.

"Public agency" does not include any agency or entity of the judicial branch or of the legislature.

(2) "Governing body" means the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee or subcommittee thereof ((~~when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment~~)).

(3) "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

(4) "Meeting" means meetings at which action is taken.

"Meeting" includes not only in-person meetings, but also any discussion of official business among a quorum of the governing body including teleconferences and conference calls.

"Meeting" does not include a majority of the members of a governing body traveling together or gathering for purposes other than a regular meeting or a special meeting as those terms are used in this chapter provided that they do not take action as defined in this chapter.

(a) A "regular meeting" means a recurring meeting held in accordance with a periodic schedule declared by statute, rule, ordinance, resolution, bylaws, or whatever rule is required for the conduct of business by a governing body.

(b) A "special meeting" means a meeting other than a regular meeting.

(5) "Executive session" refers to a meeting, or a portion thereof, conducted pursuant to RCW 42.30.110 at which no one is permitted to attend other than members of the governing body, their attorneys, their staff, and persons whose presence is necessary to provide information for one or more purposes under RCW 42.30.110(1).

Sec. 15. RCW 42.30.060 and 1989 c 42 s 1 are each amended to read as follows:

(1) No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter.

(2) Any action taken at meetings failing to comply with the provisions of this subsection of this section or RCW 42.30.110 shall be null and void, provided, however, that (a) actions that have been taken based on void recommendations of an advisory committee shall not be void, and (b) any action taken by the utilities and transportation commission to suspend a tariff filed by a public service company shall not be void. Actions that are null and void due to failure to comply with these provisions shall not be taken at subsequent meetings unless there is opportunity for a de novo discussion and action is undertaken at a meeting properly conducted under the terms of this chapter.

((~~(2)~~)) (3) No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an "action" under this chapter.

Sec. 16. RCW 42.30.070 and 1983 c 155 s 2 are each amended to read as follows:

The governing body of a public agency shall provide the times and places for holding regular meetings by ordinance, resolution, bylaws, or by whatever other rule is required for the conduct of business by that body. Such times and places shall be established with consideration for the convenience of the public. The times selected shall be reasonably related to the agency's actual needs for regular meetings and shall not be overly broad or have unreasonable breaks such that the public cannot determine when actual meetings will occur. Unless otherwise provided for in the act under which the public agency was formed, meetings of the governing body need not always be held within the boundaries of the territory over which the public agency exercises jurisdiction. If at any time any regular meeting falls on a holiday, such regular meeting shall be held on the next business day. ((If, by reason of fire, flood, earthquake, or other emergency, there is a need for expedited action by a governing body to meet the emergency, the presiding officer of the governing body may provide for a meeting site other than the regular meeting site and the notice requirements of this chapter shall be suspended during such emergency. It shall not be a violation of the requirements of this chapter for a majority of the members of a governing body to travel together or gather for purposes other than a regular meeting or a special meeting as these terms are used in this chapter: PROVIDED, That they take no action as defined in this chapter.))

Sec. 17. RCW 42.30.075 and 1977 ex.s. c 240 s 12 are each amended to read as follows:

State agencies which hold regular meetings shall file with the code reviser a schedule of the time and place of such meetings on or before January of each year for publication in the Washington state register. Notice of any change from such meeting schedule shall be published in the state register for distribution at least twenty days prior to the rescheduled meeting date.

((~~For the purposes of this section "regular" meetings shall mean recurring meetings held in accordance with a periodic schedule declared by statute or rule.~~))

Sec. 18. RCW 42.30.080 and 1971 ex.s. c 250 s 8 are each amended to read as follows:

(1) A special meeting may be called at any time by the presiding officer of the governing body of a public agency or by a majority of the members of the governing body by delivering personally or by mail written notice to each member of the governing body; and to each local newspaper of general circulation and to each local radio or television station which has on file with the governing body a written request to be notified of such special meeting or of all special meetings. Such notice must be delivered personally or by mail at least twenty-four hours before the time of such meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the ((~~business to be transacted~~)) matters to be discussed. Final ((~~disposition~~)) action shall not be taken on any other matter at such meetings by the governing body. Such written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the governing body a written waiver of notice. Such waiver may be given by telegram. Such written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes. ((~~The notices provided in this section may be dispensed with in the event a special meeting is called to deal with an~~))

(2) If, by reason of fire, flood, earthquake, or other emergency involving injury or damage to persons or property or the likelihood of such injury or damage, there is a need for expedited action by a governing body to meet the emergency, the presiding officer of the governing body may provide for a meeting site other than the regular meeting site, and the notice requirements of this chapter shall be suspended during such emergency when time requirements of such notice would make notice impractical and increase the likelihood of such injury or damage.

Sec. 19. RCW 42.30.110 and 1989 c 238 s 2 are each amended to read as follows:

(1) Nothing contained in this chapter may be construed to prevent a governing body by majority vote of the members present from holding an executive session during a regular or special meeting:

(a) To consider matters affecting national security;

(b) To consider the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price;

(c) To consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public;

(d) To review negotiations on the performance of publicly bid contracts when public knowledge regarding such consideration would cause a likelihood of increased costs;

(e) To consider, in the case of an export trading company, financial and commercial information supplied by private persons to the export trading company;

(f) To receive and evaluate specific complaints or charges of misconduct brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge;

(g) To evaluate the qualifications of an applicant for public employment or to review the performance of a public employee. However, subject to RCW 42.30.140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, or discharging or disciplining an employee, that action shall be taken in a meeting open to the public;

(h) To evaluate the qualifications of a candidate for appointment to elective office. However, any interview of such candidate and final action appointing a candidate to elective office shall be in a meeting open to the public;

(i) To obtain and discuss legal advice with legal counsel representing the agency in matters relating to agency enforcement actions, or to obtain and discuss legal advice with legal counsel representing the agency in litigation or potential litigation to which the agency, the governing body, or a member acting in an official capacity is, or is likely to become, a party, when public knowledge regarding the discussion is likely to result in an adverse legal or financial consequence to the agency;

(j) To consider, in the case of the state library commission or its advisory bodies, western library network prices, products, equipment, and services, when such discussion would be likely to adversely affect the network's ability to conduct business in a competitive economic climate. However, final action on these matters shall be taken in a meeting open to the public;

(k) To consider, in the case of the state investment board, financial and commercial information when the information relates to the investment of public trust or retirement funds and when public knowledge regarding the discussion would result in loss to such funds or in private loss to the providers of this information.

(2) Before convening in executive session, the presiding officer of a governing body shall publicly announce the specific purpose for excluding the public from the meeting place, and the time when the executive session will be concluded. The presiding officer may ask whether any person has an objection to the convening of the executive session and allow a brief statement of the reason for the objection; but no person is required to make such an objection to protect any rights under this chapter. The executive session may be extended to a stated later time by announcement of the presiding officer. No action shall be taken on any matter during executive session other than the matter for which a specific purpose has been previously announced.

Sec. 20. RCW 42.30.120 and 1985 c 69 s 1 are each amended to read as follows:

(1) Each member of the governing body who attends a meeting of such governing body where action is taken in violation of any provision of this chapter applicable to him or her, with knowledge of the fact that the meeting is in violation thereof, shall be subject to personal liability in the form of a civil penalty in the amount of ((~~one~~)) five hundred dollars. The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person. A violation of this chapter does not constitute a crime and assessment of the civil penalty by a judge shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.

(2) Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. ((Pursuant to RCW 4.84.185, any public agency who prevails in any action in the courts for a violation of this chapter may be awarded reasonable expenses and attorney fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.))

NEW SECTION. Sec. 21. It is legislative intent that the deletion of language in subsection (2) of section 20 of this act not be construed to have any substantive effect. The legislature recognizes that this language is also provided in, but not deleted from, RCW 4.84.185. The purpose of subsection (2) of section 20 of this act is solely to remove duplicative and unnecessary language from the Revised Code of Washington.

NEW SECTION. Sec. 22. The code reviser shall not codify section 21 of this act.

Sec. 23. RCW 42.30.900 and 1971 ex.s. c 250 s 16 are each amended to read as follows:

This chapter may be cited as the "Open Public Meetings Act ((~~of 1971~~))".

NEW SECTION. Sec. 24. A new section is added to chapter 42.30 RCW to read as follows:

The governing body of a public agency shall make available to the public an agenda no later than seventy-two hours prior to holding a regular meeting. Failure to make available an agenda will require an adjournment of the regular meeting. Such agenda shall provide specific identification of the matters to be discussed. At the start of a regular meeting, the governing body shall announce, or make available an agenda showing, any changes, additions, or deletions from the published agenda. Such changes, additions, or deletions shall not constitute a violation of this section.

NEW SECTION. Sec. 25. A new section is added to chapter 42.30 RCW to read as follows:

Minutes of the full proceedings of all regular and special meetings of the governing body shall be promptly prepared and the minutes, except any portion pertaining to executive sessions, shall be open to public inspection and copying. In lieu of minutes, the governing body may tape-record a meeting, in which case the tape recording of the meeting, except the recording of executive sessions, shall be available for public listening and copying.

Upon request by any person, the governing body shall tape-record an executive session. The tape recordings of executive sessions shall not be open to public inspection and copying; they shall be available for the purpose of in camera review by a court in connection with an action brought alleging that an executive session has been conducted in violation of this chapter. If the court finds that a violation has occurred, the court may release the recording of those portions of the executive session constituting the violation. Agencies shall preserve the tape recordings of executive sessions for at least ninety days.

NEW SECTION. Sec. 26. RCW 42.32.030 and 1953 c 216 s 3 are each repealed.