BILL REQ. #: H-1810.1
| State of Washington | 60th Legislature | 2007 Regular Session |
READ FIRST TIME 02/08/07.
AN ACT Relating to making adjustments to the recodification of the public records act; amending RCW 42.56.010, 42.56.030, 42.56.330, and 42.56.590; reenacting and amending RCW 42.56.270, 42.56.270, 42.56.400, and 42.56.570; adding a new section to chapter 42.56 RCW; providing an effective date; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 42.56.010 and 2005 c 274 s 101 are each amended to
read as follows:
The definitions in ((RCW 42.17.020)) this section apply throughout
this chapter unless the context clearly requires otherwise.
(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) "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. For the office of the secretary of the senate and the
office of the chief clerk of the house of representatives, public
records means legislative records as defined in RCW 40.14.100 and also
means the following: All budget and financial records; personnel
leave, travel, and payroll records; records of legislative sessions;
reports submitted to the legislature; and any other record designated
a public record by any official action of the senate or the house of
representatives.
(3) "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.
Sec. 2 RCW 42.56.030 and 2005 c 274 s 283 are each amended 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. This chapter shall be liberally
construed and its exemptions narrowly construed to promote this public
policy and to assure that the public interest will be fully protected.
In the event of conflict between the provisions of this chapter and any
other act, the provisions of this chapter shall govern.
Sec. 3 RCW 42.56.270 and 2006 c 369 s 2, 2006 c 341 s 6, 2006 c
338 s 5, 2006 c 302 s 12, 2006 c 209 s 7, 2006 c 183 s 37, and 2006 c
171 s 8 are each reenacted and amended to read as follows:
The following financial, commercial, and proprietary information is
exempt from disclosure under this chapter:
(1) Valuable formulae, designs, drawings, computer source code or
object code, and research data obtained by any agency within five years
of the request for disclosure when disclosure would produce private
gain and public loss;
(2) 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;
(3) Financial and commercial information and records supplied by
private persons pertaining to export services provided under chapters
43.163 and 53.31 RCW, and by persons pertaining to export projects
under RCW 43.23.035;
(4) Financial and commercial information and records supplied by
businesses or individuals during application for loans or program
services provided by chapters 15.110, 43.163, 43.160, 43.330, and
43.168 RCW, or during application for economic development loans or
program services provided by any local agency;
(5) 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;
(6) 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;
(7) Financial and valuable trade information under RCW 51.36.120;
(8) Financial, commercial, operations, and technical and research
information and data submitted to or obtained by the clean Washington
center in applications for, or delivery of, program services under
chapter 70.95H RCW;
(9) Financial and commercial information requested by the public
stadium authority from any person or organization that leases or uses
the stadium and exhibition center as defined in RCW 36.102.010;
(10)(a) Financial information, including but not limited to account
numbers and values, and other identification numbers supplied by or on
behalf of a person, firm, corporation, limited liability company,
partnership, or other entity related to an application for a horse
racing license submitted pursuant to RCW 67.16.260(1)(b), liquor
license, gambling license, or lottery retail license;
(b) Financial or proprietary information supplied to the liquor
control board including the amount of beer or wine sold by a domestic
winery, brewery, microbrewery, or certificate of approval holder under
RCW 66.24.206(1) or 66.24.270(2)(a) and including the amount of beer or
wine purchased by a retail licensee in connection with a retail
licensee's obligation under RCW 66.24.210 or 66.24.290, for receipt of
shipments of beer or wine.
(11) Proprietary data, trade secrets, or other information that
relates to: (a) A vendor's unique methods of conducting business; (b)
data unique to the product or services of the vendor; or (c)
determining prices or rates to be charged for services, submitted by
any vendor to the department of social and health services for purposes
of the development, acquisition, or implementation of state purchased
health care as defined in RCW 41.05.011;
(12)(a) When supplied to and in the records of the department of
community, trade, and economic development:
(i) Financial and proprietary information collected from any person
and provided to the department of community, trade, and economic
development pursuant to RCW 43.330.050(8) and 43.330.080(4); and
(ii) Financial or proprietary information collected from any person
and provided to the department of community, trade, and economic
development or the office of the governor in connection with the
siting, recruitment, expansion, retention, or relocation of that
person's business and until a siting decision is made, identifying
information of any person supplying information under this subsection
and the locations being considered for siting, relocation, or expansion
of a business;
(b) When developed by the department of community, trade, and
economic development based on information as described in (a)(i) of
this subsection, any work product is not exempt from disclosure;
(c) For the purposes of this subsection, "siting decision" means
the decision to acquire or not to acquire a site;
(d) If there is no written contact for a period of sixty days to
the department of community, trade, and economic development from a
person connected with siting, recruitment, expansion, retention, or
relocation of that person's business, information described in (a)(ii)
of this subsection will be available to the public under this chapter;
(13) Financial and proprietary information submitted to or obtained
by the department of ecology or the authority created under chapter
70.95N RCW to implement chapter 70.95N RCW;
(14) Financial, commercial, operations, and technical and research
information and data submitted to or obtained by the life sciences
discovery fund authority in applications for, or delivery of, grants
under chapter 43.350 RCW, to the extent that such information, if
revealed, would reasonably be expected to result in private loss to the
providers of this information;
(15) Financial and commercial information provided as evidence to
the department of licensing as required by RCW 19.112.110 or
19.112.120, except information disclosed in aggregate form that does
not permit the identification of information related to individual fuel
licensees;
(16) Any production records, mineral assessments, and trade secrets
submitted by a permit holder, mine operator, or landowner to the
department of natural resources under RCW 78.44.085; ((and))
(17)(a) Farm plans developed by conservation districts, unless
permission to release the farm plan is granted by the landowner or
operator who requested the plan, or the farm plan is used for the
application or issuance of a permit((.));
(b) Farm plans developed under chapter 90.48 RCW and not under the
federal clean water act, 33 U.S.C. Sec. 1251 are subject to RCW
42.56.610 and 90.64.190; and
(18) Information gathered under chapter 19.85 RCW or RCW 34.05.328
that can be identified to a particular business.
Sec. 4 RCW 42.56.270 and 2006 c 369 s 2, 2006 c 341 s 6, 2006 c
338 s 5, 2006 c 209 s 7, 2006 c 183 s 37, and 2006 c 171 s 8 are each
reenacted and amended to read as follows:
The following financial, commercial, and proprietary information is
exempt from disclosure under this chapter:
(1) Valuable formulae, designs, drawings, computer source code or
object code, and research data obtained by any agency within five years
of the request for disclosure when disclosure would produce private
gain and public loss;
(2) 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;
(3) Financial and commercial information and records supplied by
private persons pertaining to export services provided under chapters
43.163 and 53.31 RCW, and by persons pertaining to export projects
under RCW 43.23.035;
(4) Financial and commercial information and records supplied by
businesses or individuals during application for loans or program
services provided by chapters 15.110, 43.163, 43.160, 43.330, and
43.168 RCW, or during application for economic development loans or
program services provided by any local agency;
(5) 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;
(6) 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;
(7) Financial and valuable trade information under RCW 51.36.120;
(8) Financial, commercial, operations, and technical and research
information and data submitted to or obtained by the clean Washington
center in applications for, or delivery of, program services under
chapter 70.95H RCW;
(9) Financial and commercial information requested by the public
stadium authority from any person or organization that leases or uses
the stadium and exhibition center as defined in RCW 36.102.010;
(10) Financial information, including but not limited to account
numbers and values, and other identification numbers supplied by or on
behalf of a person, firm, corporation, limited liability company,
partnership, or other entity related to an application for a horse
racing license submitted pursuant to RCW 67.16.260(1)(b), liquor
license, gambling license, or lottery retail license;
(11) Proprietary data, trade secrets, or other information that
relates to: (a) A vendor's unique methods of conducting business; (b)
data unique to the product or services of the vendor; or (c)
determining prices or rates to be charged for services, submitted by
any vendor to the department of social and health services for purposes
of the development, acquisition, or implementation of state purchased
health care as defined in RCW 41.05.011;
(12)(a) When supplied to and in the records of the department of
community, trade, and economic development:
(i) Financial and proprietary information collected from any person
and provided to the department of community, trade, and economic
development pursuant to RCW 43.330.050(8) and 43.330.080(4); and
(ii) Financial or proprietary information collected from any person
and provided to the department of community, trade, and economic
development or the office of the governor in connection with the
siting, recruitment, expansion, retention, or relocation of that
person's business and until a siting decision is made, identifying
information of any person supplying information under this subsection
and the locations being considered for siting, relocation, or expansion
of a business;
(b) When developed by the department of community, trade, and
economic development based on information as described in (a)(i) of
this subsection, any work product is not exempt from disclosure;
(c) For the purposes of this subsection, "siting decision" means
the decision to acquire or not to acquire a site;
(d) If there is no written contact for a period of sixty days to
the department of community, trade, and economic development from a
person connected with siting, recruitment, expansion, retention, or
relocation of that person's business, information described in (a)(ii)
of this subsection will be available to the public under this chapter;
(13) Financial and proprietary information submitted to or obtained
by the department of ecology or the authority created under chapter
70.95N RCW to implement chapter 70.95N RCW;
(14) Financial, commercial, operations, and technical and research
information and data submitted to or obtained by the life sciences
discovery fund authority in applications for, or delivery of, grants
under chapter 43.350 RCW, to the extent that such information, if
revealed, would reasonably be expected to result in private loss to the
providers of this information;
(15) Financial and commercial information provided as evidence to
the department of licensing as required by RCW 19.112.110 or
19.112.120, except information disclosed in aggregate form that does
not permit the identification of information related to individual fuel
licensees;
(16) Any production records, mineral assessments, and trade secrets
submitted by a permit holder, mine operator, or landowner to the
department of natural resources under RCW 78.44.085; ((and))
(17)(a) Farm plans developed by conservation districts, unless
permission to release the farm plan is granted by the landowner or
operator who requested the plan, or the farm plan is used for the
application or issuance of a permit((.));
(b) Farm plans developed under chapter 90.48 RCW and not under the
federal clean water act, 33 U.S.C. Sec. 1251 et seq., are subject to
RCW 42.56.610 and 90.64.190; and
(18) Information gathered under chapter 19.85 RCW or RCW 34.05.328
that can be identified to a particular business.
Sec. 5 RCW 42.56.330 and 2006 c 209 s 8 are each amended to read
as follows:
The following information relating to public utilities and
transportation is exempt from disclosure under this chapter:
(1) 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;
(2) 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, except that
this information may be released to the division of child support or
the agency or firm providing child support enforcement for another
state under Title IV-D of the federal social security act, for the
establishment, enforcement, or modification of a support order;
(3) The names, residential addresses, residential telephone
numbers, and other individually identifiable records held by an agency
in relation to a vanpool, carpool, or other ride-sharing program or
service; however, these records may be disclosed to other persons who
apply for ride-matching services and who need that information in order
to identify potential riders or drivers with whom to share rides;
(4) The personally identifying information of current or former
participants or applicants in a paratransit or other transit service
operated for the benefit of persons with disabilities or elderly
persons;
(5) The personally identifying information of persons who acquire
and use transit passes and other fare payment media including, but not
limited to, stored value smart cards and magnetic strip cards, except
that an agency may disclose this information to a person, employer,
educational institution, or other entity that is responsible, in whole
or in part, for payment of the cost of acquiring or using a transit
pass or other fare payment media, or to the news media when reporting
on public transportation or public safety. This information may also
be disclosed at the agency's discretion to governmental agencies or
groups concerned with public transportation or public safety;
(6) ((Records of any person that belong to a public utility
district or a municipally owned electrical utility, unless the law
enforcement authority provides the public utility district or
municipally owned electrical utility with a written statement in which
the authority states that it suspects that the particular person to
whom the records pertain has committed a crime and the authority has a
reasonable belief that the records could determine or help determine
whether the suspicion might be true. Information obtained in violation
of this subsection is inadmissible in any criminal proceeding;)) Any information obtained by governmental agencies that is
collected by the use of a motor carrier intelligent transportation
system or any comparable information equipment attached to a truck,
tractor, or trailer; however, the information may be given to other
governmental agencies or the owners of the truck, tractor, or trailer
from which the information is obtained. As used in this subsection,
"motor carrier" has the same definition as provided in RCW 81.80.010;
and
(7)
(((8))) (7) The personally identifying information of persons who
acquire and use transponders or other technology to facilitate payment
of tolls. This information may be disclosed in aggregate form as long
as the data does not contain any personally identifying information.
For these purposes aggregate data may include the census tract of the
account holder as long as any individual personally identifying
information is not released. Personally identifying information may be
released to law enforcement agencies only for toll enforcement
purposes. Personally identifying information may be released to law
enforcement agencies for other purposes only if the request is
accompanied by a court order.
NEW SECTION. Sec. 6 A new section is added to chapter 42.56 RCW
to read as follows:
A law enforcement authority may not request inspection or copying
of records of any person who belongs to a public utility district or a
municipally owned electrical utility unless the authority provides the
public utility district or municipally owned electrical utility with a
written statement in which the authority states that it suspects that
the particular person to whom the records pertain has committed a crime
and the authority has a reasonable belief that the records could
determine or help determine whether the suspicion might be true.
Information obtained in violation of this section is inadmissible in
any criminal proceeding.
Sec. 7 RCW 42.56.400 and 2006 c 284 s 17 and 2006 c 8 s 210 are
each reenacted and amended to read as follows:
The following information relating to insurance and financial
institutions is exempt from disclosure under this chapter:
(1) Records maintained by the board of industrial insurance appeals
that are related to appeals of crime victims' compensation claims filed
with the board under RCW 7.68.110;
(2) Information obtained and exempted or withheld from public
inspection by the health care authority under RCW 41.05.026, whether
retained by the authority, transferred to another state purchased
health care program by the authority, or transferred by the authority
to a technical review committee created to facilitate the development,
acquisition, or implementation of state purchased health care under
chapter 41.05 RCW;
(3) The names and individual identification data of all viators
regulated by the insurance commissioner under chapter 48.102 RCW;
(4) Information provided under RCW 48.30A.045 through 48.30A.060;
(5) Information provided under RCW 48.05.510 through 48.05.535,
48.43.200 through 48.43.225, 48.44.530 through 48.44.555, and 48.46.600
through 48.46.625;
(6) ((Information gathered under chapter 19.85 RCW or RCW 34.05.328
that can be identified to a particular business;)) Examination reports and information obtained by the
department of financial institutions from banks under RCW 30.04.075,
from savings banks under RCW 32.04.220, from savings and loan
associations under RCW 33.04.110, from credit unions under RCW
31.12.565, from check cashers and sellers under RCW 31.45.030(3), and
from securities brokers and investment advisers under RCW 21.20.100,
all of which is confidential and privileged information;
(7)
(((8))) (7) Information provided to the insurance commissioner
under RCW 48.110.040(3);
(((9))) (8) Documents, materials, or information obtained by the
insurance commissioner under RCW 48.02.065, all of which are
confidential and privileged;
(((10))) (9) Confidential proprietary and trade secret information
provided to the commissioner under RCW 48.31C.020 through 48.31C.050
and 48.31C.070;
(((11))) (10) Data filed under RCW 48.140.020, 48.140.030,
48.140.050, and 7.70.140 that, alone or in combination with any other
data, may reveal the identity of a claimant, health care provider,
health care facility, insuring entity, or self-insurer involved in a
particular claim or a collection of claims. For the purposes of this
subsection:
(a) "Claimant" has the same meaning as in RCW 48.140.010(2).
(b) "Health care facility" has the same meaning as in RCW
48.140.010(6).
(c) "Health care provider" has the same meaning as in RCW
48.140.010(7).
(d) "Insuring entity" has the same meaning as in RCW 48.140.010(8).
(e) "Self-insurer" has the same meaning as in RCW 48.140.010(11);
and
(((12))) (11) Documents, materials, or information obtained by the
insurance commissioner under RCW 48.135.060.
Sec. 8 RCW 42.56.570 and 2005 c 483 s 4 and 2005 c 274 s 290 are
each reenacted and amended to read as follows:
(1) The attorney general's office shall publish, and update when
appropriate, a pamphlet, written in plain language, explaining this
chapter.
(2) The attorney general, by February 1, 2006, shall adopt by rule
an advisory model rule for state and local agencies, as defined in RCW
((42.17.020)) 42.56.010, addressing the following subjects:
(a) Providing fullest assistance to requestors;
(b) Fulfilling large requests in the most efficient manner;
(c) Fulfilling requests for electronic records; and
(d) Any other issues pertaining to public disclosure as determined
by the attorney general.
(3) The attorney general, in his or her discretion, may from time
to time revise the model rule.
Sec. 9 RCW 42.56.590 and 2005 c 368 s 1 are each amended to read
as follows:
(1)(a) Any agency that owns or licenses computerized data that
includes personal information shall disclose any breach of the security
of the system following discovery or notification of the breach in the
security of the data to any resident of this state whose unencrypted
personal information was, or is reasonably believed to have been,
acquired by an unauthorized person. The disclosure shall be made in
the most expedient time possible and without unreasonable delay,
consistent with the legitimate needs of law enforcement, as provided in
subsection (3) of this section, or any measures necessary to determine
the scope of the breach and restore the reasonable integrity of the
data system.
(b) For purposes of this section, "agency" means the same as in RCW
((42.17.020)) 42.56.010.
(2) Any agency that maintains computerized data that includes
personal information that the agency does not own shall notify the
owner or licensee of the information of any breach of the security of
the data immediately following discovery, if the personal information
was, or is reasonably believed to have been, acquired by an
unauthorized person.
(3) The notification required by this section may be delayed if a
law enforcement agency determines that the notification will impede a
criminal investigation. The notification required by this section
shall be made after the law enforcement agency determines that it will
not compromise the investigation.
(4) For purposes of this section, "breach of the security of the
system" means unauthorized acquisition of computerized data that
compromises the security, confidentiality, or integrity of personal
information maintained by the agency. Good faith acquisition of
personal information by an employee or agent of the agency for the
purposes of the agency is not a breach of the security of the system
when the personal information is not used or subject to further
unauthorized disclosure.
(5) For purposes of this section, "personal information" means an
individual's first name or first initial and last name in combination
with any one or more of the following data elements, when either the
name or the data elements are not encrypted:
(a) Social security number;
(b) Driver's license number or Washington identification card
number; or
(c) Account number or credit or debit card number, in combination
with any required security code, access code, or password that would
permit access to an individual's financial account.
(6) For purposes of this section, "personal information" does not
include publicly available information that is lawfully made available
to the general public from federal, state, or local government records.
(7) For purposes of this section and except under subsection (8) of
this section, notice may be provided by one of the following methods:
(a) Written notice;
(b) Electronic notice, if the notice provided is consistent with
the provisions regarding electronic records and signatures set forth in
15 U.S.C. Sec. 7001; or
(c) Substitute notice, if the agency demonstrates that the cost of
providing notice would exceed two hundred fifty thousand dollars, or
that the affected class of subject persons to be notified exceeds five
hundred thousand, or the agency does not have sufficient contact
information. Substitute notice shall consist of all of the following:
(i) E-mail notice when the agency has an e-mail address for the
subject persons;
(ii) Conspicuous posting of the notice on the agency's web site
page, if the agency maintains one; and
(iii) Notification to major statewide media.
(8) An agency that maintains its own notification procedures as
part of an information security policy for the treatment of personal
information and is otherwise consistent with the timing requirements of
this section is in compliance with the notification requirements of
this section if it notifies subject persons in accordance with its
policies in the event of a breach of security of the system.
(9) Any waiver of the provisions of this section is contrary to
public policy, and is void and unenforceable.
(10)(a) Any customer injured by a violation of this section may
institute a civil action to recover damages.
(b) Any business that violates, proposes to violate, or has
violated this section may be enjoined.
(c) The rights and remedies available under this section are
cumulative to each other and to any other rights and remedies available
under law.
(d) An agency shall not be required to disclose a technical breach
of the security system that does not seem reasonably likely to subject
customers to a risk of criminal activity.
NEW SECTION. Sec. 10 Section 3 of this act expires June 30,
2008.
NEW SECTION. Sec. 11 Section 4 of this act takes effect June 30,
2008.