BILL REQ. #:  Z-1032.1 

Read first time 01/13/10.   Referred to Committee on Government Operations & Elections.

     AN ACT Relating to creating the office of open records; amending RCW 34.05.030; reenacting and amending RCW 42.56.550; adding new sections to chapter 42.56 RCW; repealing RCW 42.56.530; and providing an effective date.

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

Sec. 1   RCW 34.05.030 and 2006 c 300 s 4 are each amended to read as follows:
     (1) This chapter shall not apply to:
     (a) The state militia, or
     (b) The board of clemency and pardons, or
     (c) The department of corrections or the indeterminate sentencing review board with respect to persons who are in their custody or are subject to the jurisdiction of those agencies.
     (2) The provisions of RCW 34.05.410 through 34.05.598 shall not apply:
     (a) To adjudicative proceedings of the board of industrial insurance appeals except as provided in RCW 7.68.110 and 51.48.131;
     (b) Except for actions pursuant to chapter 46.29 RCW, to the denial, suspension, or revocation of a driver's license by the department of licensing;
     (c) To the department of labor and industries where another statute expressly provides for review of adjudicative proceedings of a department action, order, decision, or award before the board of industrial insurance appeals;
     (d) To actions of the Washington personnel resources board or the director of personnel;
     (e) To adjustments by the department of revenue of the amount of the surcharge imposed under RCW 82.04.261; ((or))
     (f) To the extent they are inconsistent with any provisions of chapter 43.43 RCW; or
     (g) To the adjudicative proceedings of the office of open records.
     (3) Unless a party makes an election for a formal hearing pursuant to RCW 82.03.140 or 82.03.190, RCW 34.05.410 through 34.05.598 do not apply to a review hearing conducted by the board of tax appeals.
     (4) The rule-making provisions of this chapter do not apply to:
     (a) Reimbursement unit values, fee schedules, arithmetic conversion factors, and similar arithmetic factors used to determine payment rates that apply to goods and services purchased under contract for clients eligible under chapter 74.09 RCW; and
     (b) Adjustments by the department of revenue of the amount of the surcharge imposed under RCW 82.04.261.
     (5) All other agencies, whether or not formerly specifically excluded from the provisions of all or any part of the Administrative Procedure Act, shall be subject to the entire act.

NEW SECTION.  Sec. 2   A new section is added to chapter 42.56 RCW to read as follows:
     (1) There is established an independent office of open records. The office must:
     (a) Provide impartial administrative reviews of appeals by persons or agencies entitled to relief under this chapter;
     (b) Provide information relating to the implementation and enforcement of this chapter;
     (c) Adopt rules pursuant to the administrative procedure act, chapter 34.05 RCW, to provide clear guidelines for an appeal process before the office of public records from decisions of agencies subject to this chapter. The provisions of RCW 34.05.410 through 34.05.598 do not apply to the office of public records for this appeal process;
     (d) Provide training courses on this chapter for agencies, public officials, and public employees, and make training materials available at no charge on its web site;
     (e) Employ or contract with attorneys to serve as administrative law judges to review appeals. Each administrative law judge must comply with all of the following:
     (i) Complete a training course provided by the office before acting as an administrative law judge; and
     (ii) Comply with the procedures under section 3 of this act; and
     (f) Annually report on its activities and findings to the governor and the legislature and recommend legislation, as the office deems appropriate.
     (2) The office of open records shall be supervised by an executive director, appointed by the governor within ninety days of the effective date of this section, subject to consent of the senate. The initial executive director must be appointed within ninety days of the effective date of this section. The term is five years, subject to reappointment. The executive director must be admitted to practice law in the state of Washington, and may be removed for cause. Compensation shall be fixed by the governor after recommendation of the state committee on agency officials' salaries.
     (a) The executive director shall appoint attorneys admitted to practice law in the state of Washington to act as administrative law judges, and additional clerical, technical, and professional staff as may be appropriate, and may contract for additional services as necessary for the performance of the executive director's duties. The salaries of administrative law judges shall be determined by the executive director after recommendation of the state committee on agency officials' salaries.
     (b) The office of open records may contract with the office of administrative hearings to use its facilities, equipment, administrative law judges, and clerical and technical staff to create efficiencies and cost savings.
     (c) The executive director shall serve as the chief administrator, shall ensure that the duties of the office are carried out, shall monitor cases appealed to the office, and may review appeals in accordance with section 3 of this act.
     (d) The appropriation for the office of open records shall be a separate line item recommended directly by the executive director.

NEW SECTION.  Sec. 3   A new section is added to chapter 42.56 RCW to read as follows:
     (1) Persons described in this subsection may file an appeal with the office of open records.
     (a) A person entitled to seek relief under RCW 42.56.550 may file a written appeal with the office within thirty days of the date of the agency's claim of exemption or the last production of a record on a partial or installment basis. At any time before the production or denial of records, a person entitled to seek relief under RCW 42.56.550 may file an appeal challenging the reasonable estimate of the time required to respond to the request pursuant to RCW 42.56.520.
     (b) A person entitled to seek relief under RCW 42.56.540 may file a written appeal with the office within ten business days of the date of the agency's notice of intended disclosure by an agency.
     (c) A agency entitled to seek relief under RCW 42.56.540 may file a written appeal with the office within thirty days of the date of the agency's claim of exemption or the last production of a record on a partial or installment basis, or within ten business days of the date of the agency's notice of intended disclosure by another agency possessing the requested public records.
     (d) For persons or agencies seeking injunctive relief under RCW 42.56.540 the office may issue a temporary restraining order that enjoins the agency from disclosure under this chapter until such time the office renders a final order pursuant to this section.
     (e) Any person or agency filing an appeal or intervening in an appeal must pay the office a filing fee of thirty-five dollars. The fee must be waived by order of an administrative law judge upon a showing that the person filing the appeal is indigent.
     (2)(a) The office of open records shall assign an administrative law judge to review appeals and issue final orders granting or denying relief under this chapter. At the discretion of the executive director, an administrative law judge may confer with legal counsel and other employees of the office who do not otherwise participate in the case.
     (b)(i) The administrative law judge may grant a timely request to intervene in an appeal under this section if:
     (A) A person is entitled to seek relief under RCW 42.56.540 or 42.56.550;
     (B) No hearing has been held;
     (C) The administrative law judge has not yet issued final order; and
     (D) The party seeking to intervene in an appeal offers information that will assist with resolving the appeal without undue delay.
     (ii) Copies of the written request to intervene in an appeal shall be provided to all parties in the appeal by the person or agency submitting the request. A decision by the administrative law judge to grant or deny a request to intervene is not subject to judicial review.
     (c) Unless a hearing is set, the administrative law judge shall issue final order that must be mailed to the parties within thirty days of receipt of the appeal filed with the office.
     (d) The office shall adopt rules pursuant to chapter 34.05 RCW prescribing procedures for an expedited review of an appeal with the issuance of a final order in fewer than thirty days for circumstances including but not limited to: Whether there is a clear legal issue presented on appeal, undisputed facts, and an urgent need for resolution that will be frustrated by delay. A decision by the office to grant or deny an expedited review is not subject to judicial review.
     (e) At any time before the office issues a final order, any person or agency may submit a written request for a hearing. The administrative law judge may order a hearing if further information will be beneficial according to criteria established by rule adopted by the office pursuant to chapter 34.05 RCW. The order granting or denying a hearing is not subject to judicial review. The administrative law judge may extend the deadline for a final order beyond thirty days in order to hold a hearing. The administrative law judge must issue a final order within thirty days after the hearing.
     (f) Upon setting a hearing, the administrative law judge shall set a schedule for the submission of documents, testimony, or other evidence in support of any party's position. The administrative law judge may limit the nature and extent of admissible evidence for the sufficiency of issuing a final order. The administrative law judge may issue subpoenas and may enter protective orders. The administrative law judge shall decide whether to permit the taking of depositions, the requesting of admissions, and all other procedures authorized by rules 26 through 36 of the superior court civil rules. The administrative law judge shall condition use of discovery on a showing of necessity and unavailability by other means. The administrative law judge shall consider: (i) Whether all parties are represented by counsel; (ii) whether undue expense or delay in bringing the case to hearing will result; (iii) whether the discovery will promote the orderly and prompt conduct of the proceeding; and (iv) whether the interests of justice will be promoted. Discovery orders, protective orders, and subpoenas may be enforced by the office in a superior court in the county where the hearing is conducted.
     (g) The administrative law judge may accept or order the submission of any records, or portions thereof, for in camera review. Records reviewed in camera for appeals before the office are exempt from disclosure under this chapter.
     (h) Before issuing a final order, the office must require the parties to an appeal to meet and confer for the purpose of simplification or settlement of issues by agreement. The office may order mediation where all parties agree to mediation for any issue. The administrative law judge may stay appeals and time limits required under this section pursuant to a mediation order for the duration of the mediation.
     (i) The office may not award any costs, attorneys' fees, or penalties.
     (j) The executive director may designate certain final orders as precedents according to criteria established by rule adopted pursuant to chapter 34.05 RCW. All other final orders are without precedent for determining other cases involving similar facts or issues. All final orders shall be made immediately and publicly available on the web site of the office.
     (3)(a) Appeals to the office of open records are not the exclusive remedy for enforcement of the provisions of this chapter. Any person may initiate an action in court under RCW 42.56.540 or 42.56.550. However, if an appeal is filed first with the office, the office retains primary jurisdiction.
     (b) Subject to judicial review, the final orders of the administrative law judges are binding on all parties to an appeal before the office, and are enforceable in a superior court.
     (c) Judicial review of a final order of the office must be filed with a superior court within thirty days after the entry of the final order, and venue shall be determined consistent with the provisions of RCW 42.56.550. Judicial review of a final order of the office by a superior court shall be de novo.
     (d) The office may not be named as a defendant for any judicial review of a final order to a superior court.
     (e) A superior court may award a person who prevails on judicial review against an agency all costs, including reasonable attorneys' fees, and penalties in accordance with RCW 42.56.550(4). However, a superior court may not award any costs or attorneys' fees incurred or accrued for appeals before the office.

Sec. 4   RCW 42.56.550 and 2005 c 483 s 5 and 2005 c 274 s 288 are each reenacted and 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 42.56.030 through 42.56.520 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.
     (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 attorneys' 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 one hundred dollars for each day that he or she was denied the right to inspect or copy said public record. However, in no event may a court award a penalty unless such person received a final order from the office of open records before prevailing against an agency in court pursuant to this subsection.
     (5) For actions under this section against counties, the venue provisions of RCW 36.01.050 apply.
     (6) Actions under this section must be filed within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis.

NEW SECTION.  Sec. 5   RCW 42.56.530 (Review of agency denial) and 1992 c 139 s 10 are each repealed.

NEW SECTION.  Sec. 6   Sections 1 and 3 through 5 of this act take effect January 1, 2011.