BILL REQ. #:  H-1281.4 

READ FIRST TIME 02/21/13.   

     AN ACT Relating to establishing a cost recovery mechanism for public records sought for commercial purposes; amending RCW 42.56.120; reenacting and amending RCW 42.56.080; creating a new section; and prescribing penalties.

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

NEW SECTION.  Sec. 1   The legislature finds that public agencies must remain capable of adequately informing the public of their activities through timely disclosure of public records. However, public agencies are increasingly burdened by broad record requests from commercial entities, including data miners, whose purpose is to sell or resell the public records for a profit. Public agencies expend taxpayer dollars to locate, assemble, redact, review, and provide the requested public records. Under existing law, except for copying and mailing costs, public agencies may not recover the true costs of providing this service. As a result, the taxpayers of this state effectively subsidize commercial requestors. Accordingly, the purpose of this act is to protect the public interest and prevent diversion of scarce agency resources by authorizing public agencies to recover their costs through charging a reasonable fee when records are requested for the purpose of sale or resale.

Sec. 2   RCW 42.56.080 and 2005 c 483 s 1 and 2005 c 274 s 285 are each reenacted and amended to read as follows:
     (1) Public records shall be available for inspection and copying, and agencies shall, upon request for identifiable public records, make them promptly available to any person ((including,)). If applicable, based on the agency's determination, public records shall be made available on a partial or installment basis as records that are part of a larger set of requested records are assembled or made ready for inspection or disclosure.
     (2) Agencies shall not deny a request for identifiable public records solely on the basis that the request is overbroad.
     (3) Agencies shall not distinguish among persons requesting records, and such persons shall not be required to provide information as to the purpose for the request, except to establish whether:
     (a) Inspection and copying would violate RCW 42.56.070(9) or other statute which exempts or prohibits disclosure of specific information or records to certain persons; or
     (b) The purpose of the request is the sale or resale of all or part of the record, including the sale or resale of a document or database containing all or part of the record.
     (4) Agency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency. Agencies shall honor requests received by mail for identifiable public records unless exempted by provisions of this chapter.

Sec. 3   RCW 42.56.120 and 2005 c 483 s 2 are each amended to read as follows:
     (1) Except as provided in subsection (2) of this section, no fee shall be charged for the inspection of public records((. No fee shall be charged)), for locating public documents ((and)), or for making them available for copying. A reasonable charge may be imposed for providing copies of public records and for the use by any person of agency equipment or equipment of the office of the secretary of the senate or the office of the chief clerk of the house of representatives to copy public records, which charges shall not exceed the amount necessary to reimburse the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives for its actual costs directly incident to such copying. Agency charges for photocopies shall be imposed in accordance with the actual per page cost or other costs established and published by the agency. In no event may an agency charge a per page cost greater than the actual per page cost as established and published by the agency. To the extent the agency has not determined the actual per page cost for photocopies of public records, the agency may not charge in excess of fifteen cents per page. An agency may require a deposit in an amount not to exceed ten percent of the estimated cost of providing copies for a request. If an agency makes a request available on a partial or installment basis, the agency may charge for each part of the request as it is provided. If an installment of a records request is not claimed or reviewed, the agency is not obligated to fulfill the balance of the request.
     (2) When a request for records is made for the purpose of sale or resale of all or part of the record, unless an exemption as provided in subsection (7) of this section is applicable, an agency may charge a fee to recover its actual costs in responding to the request. The fee may be a flat fee, fee per record, or other type of fee, but the fee shall not exceed a reasonable estimate of the actual cost to provide the records. The actual cost may include, but is not limited to, the cost of locating, assembling, reviewing, redacting, copying, and providing the record to the requestor.
     (3) Where, as authorized in RCW 42.56.080(3)(b), an agency has required a person to provide information about whether the purpose of a request is the sale or resale of the requested records and the person has denied such a purpose, no cost recovery fee may ordinarily be assessed under subsection (2) of this section. However, if the agency has reason to believe that the purpose of the request has been misrepresented and the request is made for the purpose of sale or resale, the agency may require the requestor to sign a statement under penalty of perjury, attesting that the purpose of the record request is not sale or resale of all or part of the record.
     (4) Before charging the fee authorized in subsection (2) of this section, an agency must develop and adopt, with notice and public hearing, a fee schedule. The agency shall publish the fee schedule along with the methodology by which the fees were established.
     (5) The agency must also establish an appeals process by which a requestor may appeal the amount of a fee. This process may be established by contracting or entering into an interlocal agreement with another agency. When a fee is charged pursuant to subsection (2) of this section, the agency must provide the requestor with notice of the appeals process.
     (6) When an agency charges a cost recovery fee pursuant to subsection (2) of this section, it may require a requestor to post a deposit in an amount not to exceed ten percent of the estimated actual cost of providing the records. If an agency makes the request available on a partial or installment basis, the agency may require a deposit in an amount not to exceed ten percent of the estimated actual cost of providing the installment.
     (7) The fee authorized in subsection (2) of this section may not be assessed when:
     (a) The requestor is entitled to obtain the requested records pursuant to a contract, memorandum of understanding, or other binding agreement with the agency;
     (b) The requestor is entitled to obtain the records under authority of law other than this chapter;
     (c) The requestor is a representative of the news media affiliated with an organization that publishes or disseminates information, and where the request is made as part of news gathering and not for a different commercial use;
     (d) The requestor is a representative of a religious, charitable, educational, or other nonprofit organization exempt from taxation under Title 26 U.S.C. Sec. 501(c)(3) of the federal internal revenue code of 1986, as amended, and the request is made in furtherance of the organization's nonprofit purpose and not for a different commercial purpose;
     (e) The requestor is a representative of an educational institution organized under the law of Washington or another state, and the purpose of the request is in furtherance of the educational institution's mission and not for a different commercial purpose;
     (f) The requestor can demonstrate that the requested records will be used to comply with governmental permitting requirements or other regulations;
     (g) The requestor is a title insurer licensed by the insurance commissioner, an agent of such a title insurer, or an entity that collects and provides data to such a title insurer or agent, as reasonably required to insure titles, to act as an escrow closing agent or, as allowed by the office of the insurance commissioner by rule, to provide related customer services; or
     (h) The requestor is a person licensed under chapter 18.85 RCW, a prospective developer of real property, or a person seeking information about real property or buildings owned by that person, and the request is for the purpose of evaluating the viability of developing a specific parcel of real property for a particular use, and not for a different commercial purpose.
     (8) A person or other legal entity that avoids paying the fee authorized in subsection (2) of this section, by intentionally misrepresenting the purpose for which the request is made or the requestor's eligibility for an exemption under subsection (7) of this section, or by intentionally inducing another person to knowingly or unknowingly make such a misrepresentation, is liable for a civil penalty at least equivalent to what the agency would have charged for the records. The civil penalty under this section is in addition to any other civil or criminal penalties and remedies available under any other law of this state.
     (9) Nothing in this section or RCW 42.56.080 may be construed to create an obligation or authorization for an agency to create or provide access to lists of individuals requested for commercial purposes.