WSR 04-11-107

PROPOSED RULES

OFFICE OF THE

INSURANCE COMMISSIONER

[ Filed May 19, 2004, 9:31 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 04-01-177.

     Title of Rule: Public access to information and records.

     Purpose: These proposed rules reflect recent changes in the law, technology, and the Office of the Insurance Commissioner (OIC) processes for public access to information and records. These proposed rules make it easier for requesters to understand OIC procedures regarding access to public records.

     Other Identifying Information: Insurance Commissioner Matter No. R 2003-10.

     Statutory Authority for Adoption: RCW 48.02.060, 48.17.250, 42.17.300, 70.02.050.

     Statute Being Implemented: RCW 42.17.250 and 70.02.050.

     Summary: RCW 42.17.250 requires each agency to adopt separate procedures for requesters to gain access to information. The current rules were last amended in 1975.

     Reasons Supporting Proposal: The current rules do not reflect changes in the law, technology, and OIC processes. These proposed rules improve clarity and make it easier for requesters to understand OIC procedures regarding access to public records.

     Name of Agency Personnel Responsible for Drafting: Jon Hedegard, P.O. Box 40255, Olympia, WA 98504-0255, (360) 725-7039; Implementation: Steve Carlsberg, P.O. Box 40255, Olympia, WA 98504-0255, (360) 725-7003; and Enforcement: Carol Sureau, P.O. Box 40255, Olympia, WA 98504-0255, (360) 725-7050.

     Name of Proponent: Mike Kreidler, Insurance Commissioner, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: RCW 42.17.250 requires each agency to adopt separate procedures for requesters to gain access to information. The current rules were last amended in 1975. The current rules do not reflect changes in the law, technology, and OIC processes. These proposed rules improve clarity and make it easier for requesters to understand OIC procedures regarding access to public records.

     Proposal Changes the Following Existing Rules:

     No small business economic impact statement has been prepared under chapter 19.85 RCW. These proposed regulations impose no costs on businesses regulated by the OIC.

     RCW 34.05.328 does not apply to this rule adoption. This proposal is not a significant legislative rule for the purposes of RCW 34.05.328.

     Hearing Location: Insurance Commissioner's Office, Room TR 120, 5000 Capitol Boulevard, Tumwater, WA 98501, on June 24, 2004, at 10:00.

     Assistance for Persons with Disabilities: Contact Lori Villaflores by June 21, 2004, TDD (360) 586-0241.

     Submit Written Comments to: Kacy Scott, P.O. Box 40255, Olympia, WA 98504-0255, e-mail Kacys@oic.wa.gov, fax (360) 586-3109, by June 23, 2004.

     Date of Intended Adoption: June 30, 2004.

May 19, 2004

Mike Kreidler

Insurance Commissioner

OTS-7042.2

Chapter 284-03 WAC

PUBLIC ((ACCESS TO INFORMATION AND)) RECORDS

PUBLIC RECORDS REQUESTS
NEW SECTION
WAC 284-03-005   What is a public record?   "Public record" is defined in RCW 42.17.020. Public records include any written or recorded communication containing information relating to the conduct of the OIC or the performance of any governmental or proprietary function prepared, owned, used, or retained by the OIC.

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AMENDATORY SECTION(Amending Order R-75-1, filed 5/19/75)

WAC 284-03-010   ((Purpose.)) Who should I contact about a public record request?   ((The purpose of this chapter is to provide rules implementing RCW 42.17.250 - 42.17.320 (§§ 25 through 32, chapter 1, Laws of 1973).)) The public records officer is in charge of all records maintained by the office of the insurance commissioner (OIC). This includes records at any office in the state maintained by the insurance commissioner. The public records officer is responsible for overseeing the release of public records, coordinating OIC public disclosure staff, and maintaining the records indexes.

[Order R-75-1, § 284-03-010, filed 5/19/75.]


NEW SECTION
WAC 284-03-015   How do I make a public record request?   (1) Public record requests must be made in writing. The OIC accepts written public record requests made in person or sent by e-mail, fax, or mail. Requests will be accepted either:

     (2) On an OIC Public Disclosure Request form. The forms are available on the OIC website or by contacting the public records officer; or

     (3) If the OIC form is not used, the public record request should be in writing and include the following information:

     (a) The name of the person requesting the record;

     (b) The calendar date on which the request was made;

     (c) A statement that the request is not to be used for commercial purposes; and

     (d) A sufficient description of the record requested.

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AMENDATORY SECTION(Amending Order R-75-1, filed 5/19/75)

WAC 284-03-020   ((Definitions.)) What records indexes are available?   (((1) The definitions set forth in RCW 42.17.020 shall apply to this chapter.

     (2) "Office" is the office of the insurance commissioner of the state of Washington, which includes by operation of law the office of the state fire marshal.)) The OIC does not maintain or have custody of all agency records. Historical records are sent to the secretary of the state's archives division. The OIC maintains a current index providing identifying information regarding OIC public records. The index is available to all persons under the same rules and on the same conditions as are applied to public records available for inspection. The records are indexed:

     (1) By appropriate names;

     (2) By calendar year;

     (3) By topic; or

     (4) A combination of the above methods, as appropriate.

[Order R-75-1, § 284-03-020, filed 5/19/75.]


NEW SECTION
WAC 284-03-025   Is the OIC required to create public records for me?   The Public Disclosure Act (RCW 42.17.250 through 42.17.348) requires access to existing, identifiable public records in an agency's possession at the time of the request (see RCW 42.17.270). The OIC is not required to collect or organize data to create a public record that does not exist at the time of the public record request.

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AMENDATORY SECTION(Amending Order R-75-1, filed 5/19/75)

WAC 284-03-030   ((Functions -- Organization -- Administration.)) How will the OIC respond to my public record request?   (1) For purposes of this chapter, the functions, organization and administration of the office relating to insurance matters shall be as set forth in chapter 284-02 WAC.

     (((2) For purposes of this chapter, the functions, organization and administration of this office relating to the state fire marshal shall be as set forth in chapter 212-02 WAC.)) Within five business days after receiving a request, the OIC will either:

     (a) Provide the record(s);

     (b) Acknowledge your request and give you a reasonable estimate of how long the agency will take to provide records. If your request is not clear, the OIC may ask you for more information (see WAC 284-03-035); or

     (c) Deny all or part of the request in writing, with reasons for the denial (see WAC 284-03-040 and 284-03-045). The explanation will include the law the OIC relied upon in its denial. Every denial will be sent to the public records officer for review as required by RCW 42.17.320.

     (2) At his or her discretion, the public records officer may send the requested records to you by e-mail, fax, or mail. The records may be delivered on computer or compact disks, or by use of other methods of transmittal or storage.

[Order R-75-1, § 234-03-030 (codified as WAC 284-03-030), filed 5/19/75.]


NEW SECTION
WAC 284-03-035   Why might the OIC need to extend the time to respond to a public record request?   The OIC may need to extend the time to respond to a public record request to:

     (1) Locate and gather the information requested;

     (2) Notify an individual or organization affected by the request;

     (3) Determine whether the information requested is exempt from disclosure and whether all or part of the public record requested can be released; or

     (4) Contact you to clarify the intent, scope or specifics of the request. If you fail to clarify the request, the OIC may not have to respond to your request.

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AMENDATORY SECTION(Amending Order R-75-1, filed 5/19/75)

WAC 284-03-040   ((Public records available.)) What happens if the public record I requested is exempt from disclosure?   ((Public records are available for public inspection and copying pursuant to these rules except as otherwise provided by RCW 42.17.310 and these rules.)) If the OIC determines that a record is exempt from disclosure, you will be informed in writing of the specific exemption authorizing the OIC to withhold the record.

[Order R-75-1, § 284-03-040, filed 5/19/75.]


NEW SECTION
WAC 284-03-045   What happens if only part of the record I requested is exempt?   The OIC may delete identifying details or other information when there is reason to believe the information is not subject to disclosure (see RCW 42.17.260 for an example). The public records officer will explain any deletion in writing.

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AMENDATORY SECTION(Amending Order R-75-1, filed 5/19/75)

WAC 284-03-050   ((Public records officer.)) Will the OIC review the denial of my request?   ((The public records officer for the office shall be the administrative officer, as designated by the state insurance commissioner, for all records maintained by such office whether located at the central office thereof at Olympia, Washington, or at such other offices throughout the state maintained by the state insurance commissioner. The public records officer shall be located at such central office. The public records officer shall be responsible for implementation of this chapter regarding release of public records, coordinating the staff of the office in this regard, generally insuring compliance by the staff with the public records disclosure requirements of RCW 42.17.250 - 42.17.320, and maintaining the records index of such office as required.)) If the OIC denies your public record request, you may ask the OIC to review the denial. To request a review, you must:

     (1) Make your request in writing;

     (2) Specifically refer to the written exemption provided by the OIC; and

     (3) Address the request for review to the OIC's public records officer.

     After receiving your request for review, the public records officer will refer the matter for review to the insurance commissioner or a designated deputy insurance commissioner. The commissioner or designee will either affirm or reverse the denial within two business days after the receipt of your request for review.

[Order R-75-1, § 284-03-050, filed 5/19/75.]


NEW SECTION
WAC 284-03-055   What are the fees to copy or inspect records?   There is no cost to inspect records. Copying or duplicating fees are intended to equal the costs to the OIC, including costs of materials, machinery, and personnel. The fees charged will be reviewed periodically to assure their accuracy (see RCW 42.17.300). Contact the public records officer or check the OIC website to find out the current fees.

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AMENDATORY SECTION(Amending Order R 90-9, filed 8/28/90, effective 9/28/90)

WAC 284-03-060   ((Records index.)) What records can I inspect and/or copy?   ((The office has available to all persons a current index which provides identifying information as to public records received, issued, adopted or promulgated since its inception. The current index adopted by the office shall be available to all persons under the same rules and on the same conditions as are applied to public records available for inspection.

     The indexes shall be kept current and maintained by the commissioner's designee, located in the Olympia office, and shall be updated no less frequently than annually. All indexes maintained by the commissioner shall be indexed by appropriate names, by calendar year, by topic, or a combination of these, as appropriate.)) You may inspect or get copies of all public records unless they are exempted by chapter 42.17 RCW, Title 48 RCW, chapter 19.108 or 70.02 RCW, or other applicable law.

[Statutory Authority: RCW 48.02.060, 48.02.160, 42.17.260 and 34.05.220. 90-18-037 (Order R 90-9), § 284-03-060, filed 8/28/90, effective 9/28/90; Order R-75-1, § 284-03-060, filed 5/19/75.]


NEW SECTION
WAC 284-03-065   When can I inspect or copy documents?   You can inspect and copy public records at the OIC headquarters in Thurston County from 8:30 a.m. to noon and 1:00 p.m. to 4:30 p.m., Monday through Friday. Records are not available for inspection or copying on legal holidays. The OIC reserves the right to restrict your ability to examine or copy public records when the OIC believes it is necessary to preserve public records or prevent interference in the performance of agency duties. This does not prevent OIC from providing you with copies of the public records or limit the duty of the OIC to provide you with copies of the public records.

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AMENDATORY SECTION(Amending Order R-75-1, filed 5/19/75)

WAC 284-03-070   ((Office hours.)) Do I need to make an appointment?   ((Public records shall be available for inspection and copying during the customary office hours of the office. For purposes of this chapter, the customary office hours shall be from 9:00 a.m. to noon and from 1:00 p.m to 4:00 p.m., Monday through Friday, excluding legal holidays.)) Appointments are not required but help the OIC provide prompt and efficient service. Since public records facilities and staff are limited, you should make an appointment with the public records officer. When making an appointment, please tell the public records officer what record(s) you would like to inspect or copy. Some records may be offsite, may need to be identified, or may be exempt from disclosure.

[Order R-75-1, § 284-03-070, filed 5/19/75.]


NEW SECTION
WAC 284-03-075   Can I take original records away from the OIC's office?   No. You cannot take original records from the OIC's building. The OIC has a duty to protect public records (see RCW 42.17.290).

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USE AND PROTECTION OF PERSONAL INFORMATION BY THE OIC
AMENDATORY SECTION(Amending Order R-75-1, filed 5/19/75)

WAC 284-03-100   ((Exemptions.)) If I make a complaint or inquiry, how will the OIC use that information?   (((1) The office reserves the right to determine that a public record requested in accordance with the procedures outlined in WAC 284-03-080 is exempt under the provisions of RCW 42.17.260 and/or such other laws as may be deemed applicable.

     (2) In addition, pursuant to RCW 42.17.260 the office reserves the right to delete identifying details when it makes available or publishes any public record in any cases when there is reason to believe that disclosure of such details would be an invasion of personal privacy or as otherwise provided in WAC 284-03-040. The public records officer will fully justify such deletion in writing.

     (3) All denials of requests for public records must be accompanied by a written statement specifying the reason for the denial, including a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld.)) The OIC will use the information you provide in a consumer complaint or inquiry to attempt to resolve your issue or inquiry. This includes contacting the business or person you complained about and any other persons, governments, businesses, or entities that may help the OIC resolve your complaint. If you do not wish the information to be disclosed by the OIC, you must state that in writing to the OIC. This may prevent the OIC from assisting you in resolving your issue.

[Order R-75-1, § 284-03-100, filed 5/19/75.]


NEW SECTION
WAC 284-03-105   Will the OIC protect my personal information?   The OIC reserves the right to protect personal information, including health information, as permitted by RCW 42.17.250 through 42.17.348, chapter 70.02 RCW, Title 48 RCW, and other applicable laws.

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REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 284-03-080 Requests for public records.
WAC 284-03-090 Copying fees.
WAC 284-03-110 Review of denials of public records request.
WAC 284-03-120 Protection of public records.
WAC 284-03-130 Consumer complaints and inquiries.
WAC 284-03-140 Adoption of forms.
WAC 284-03-990 Form 276-1 -- Request for inspection of records.
WAC 284-03-99001 Form 276-2 -- Request for photocopy of record(s).

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