Effective Date of Rule: Thirty-one days after filing.
Purpose: To adopt new public disclosure and related rules as they pertain to the department of early learning (DEL), describe DEL's organization (as required by RCW 42.56.040) and to give the public information about requesting DEL records.
Statutory Authority for Adoption: RCW 42.56.040 and 43.215.070; chapter 43.215 RCW.
Adopted under notice filed as WSR 12-02-081 on January 4, 2012.
Changes Other than Editing from Proposed to Adopted Version: RCW 34.05.325(6) requires the department to prepare a "concise explanatory statement" before any rule is filed for permanent adoption. The concise explanatory statement:
|•||Identifies the department's reasons for adopting the rule;|
|•||Describes any differences between the proposed rule and the final rule, other than editing, and the reasons for the differences; and|
|•||Summarizes all comments by category received on the proposal rules during the official comment period, the department's response to the comments, and whether any comments resulted in a change to the final rules, or giving the department's reasons if the rule was not changed.|
Reasons for Adopting the Rule: DEL is adopting as permanent, chapter 170-01 WAC, Public disclosure rules and related rules as they pertain to DEL, describe DEL's organization (as required by RCW 42.56.040) and to give the public information about requesting DEL's records.
Rule Development Process: On August 27, 2009, DEL filed a CR-101 preproposal public notice that began the rule development process. On December 10, 2009, a preliminary draft of chapter 170-01 WAC was circulated by e-mail and on-line for informal public review; no comments were received.
On January 4, 2012, DEL filed the formal proposed rules (CR-102 notice). Formal public hearings were held in the evening on February 7, 2012, in Tumwater, and on Saturday, February 11, 2012, in Spokane. No one from the public attended the February 7 hearing. One person attended the Spokane hearing, and formal testimony was given by Laura Bowman, a licensed child care center director. The comments from the hearing those received in writing are summarized by issue or WAC number in the table below. The table also includes the department responses to each issue raised in the public comments.
Differences Between the Proposed Rule and the Final Rule, Other than Editing. The following changes were made to the rules proposed as WSR 12-02-081.
I. CHANGES TO SECTIONS OF ADOPTED NEW CHAPTER 170-01 WAC - DEL PUBLIC DISCLOSURE RULES COMPARED TO THE PROPOSAL:
A. WAC 170-01-0030 Description of the department of early learning.
|-||In subsection (3), the word Lacey was changed to Olympia. DEL is relocating its administrative office to Olympia, Washington.|
|-||In subsection (2)(a) requests may be delivered to: Department of Early Learning, 649 Woodland Square Loop S.E., Lacey, WA 98503, was changed to requests may be delivered to: Department of Early Learning, P.O. Box 40970, Olympia, WA 98504-0970.|
|Summary of Comments||Department Response
Was the Proposed Rule Changed as a Result?
If Not, Explain Why.
|• Concerned that listing the names of staff that work at a specific child care facility and their background check status on child care check can have a negative impact on people who have restraining orders.||The final rule was not changed as a result of this comment. Rationale: Child care check is not a part of the public disclosure program, nor is it addressed in chapter 170-01 WAC.|
|• Submitted a public disclosure request and was not given the information for a month and a half.||The final rule was not changed as a result of this comment. Rationale: The new WAC sets specific guidelines for how and when staff will reply to requests for information.|
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 17, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 17, Amended 0, Repealed 0.
Date Adopted: April 11, 2012.
Elizabeth M. Hyde
DISCLOSURE OF PUBLIC RECORDS
"DEL" or "department" means the department of early learning. Where appropriate, DEL also may refer to the officials and employees of the department of early learning.
"Disclosure" means inspection and/or copying of public records, unless the record is exempt from disclosure by law.
"Public records" includes anything prepared, owned, used or retained by the agency and can include agency publications, on-line information posted on internet sites owned or controlled by the agency, child care career and wage ladder information, ECEAP records, subsidy information, grants, requests for proposals and contract information, documents contained in licensing files, interagency communication including service level agreements and memorandums of understanding, e-mails, letters, memos, licensing complaint reports in CAMIS/FAMLINK, service episode records, records held by contractors if they related to agency's function or action, certain electronic records, and other records not readily available to the public such as old manuals or training materials. These records can be written, recorded or electronic.
To be a public record, a document must relate to the "conduct of government or the performance of any governmental or proprietary function." RCW 42.17.020(41). Almost all records held by an agency relate to the conduct of government; however, some do not. A purely personal record having no relation to the conduct of government is not a "public record." While the contents of the personal record might not be a public record, a transaction of the record itself may be.
"Public records officer" means the designated person for the department who oversees all records requests. This person is identified in the Washington state register.
"Redact" means to edit from a released record information that is exempt from disclosure to the public, by covering over the information with black ink or other method without deleting the information from the original record.
(2) The department was established to oversee child care licensing and early childhood learning programs and initiatives.
(3) The administrative office of the department of early learning is located in Olympia, Washington. To request any information, contact: P.O. Box 40970, Olympia, WA 98504-0970, or call toll free 1-866-482-4325.
(4) Field offices exist in Aberdeen, Bellevue, Bellingham, Bremerton, Everett, Kennewick, Kelso, Kent, Mount Vernon, Othello, Port Angeles, Seattle, Spokane, Tacoma, Tumwater, Vancouver, Wenatchee, and Yakima.
A request may be fulfilled by the PRO, or other DEL staff designated by the PRO.
(a) Rules adopted by DEL under chapter 34.05 RCW.
(b) Substantive final orders issued by the department in adjudicative proceedings under chapter 34.05 RCW and chapter 170-03 WAC.
(c) Interpretive and policy statements filed by the department under chapter 34.05 RCW.
(2) The department finds that it would be unduly burdensome and would interfere with agency operations to maintain an index of other records because of the complexity and diversity of its operations and the resulting volume of manuals, correspondence, electronic data and constituent records.
(3) The department will make available for public disclosure all indices if at a future time they are developed for agency use.
(2) Public records requests may be made verbally or in writing.
(a) Written requests may be sent by e-mail to firstname.lastname@example.org, by fax to 360-413-3482 or mail. Requests may be delivered to: Department of Early Learning, P.O. Box 40970, Olympia, WA 98504-0970.
(b) DEL's public records request form is on its web site.
(c) A written request without using the DEL public records request form should contain:
(i) Name of requestor;
(ii) Address of requestor;
(iii) Other contact information, including telephone number and any e-mail address;
(iv) The date on which the request was made;
(v) A sufficient description of the record requested; and
(vi) If the information being requested may include a list of individuals or businesses, a statement that the list will not be used for commercial purposes, which is prohibited by law.
(1) Provide the record(s);
(2) Acknowledge the request and give a reasonable time estimate of how long the department will take to provide records;
(3) Contact the requestor to clarify the request if it isn't understood by the public records officer; or
(4) Deny all or part of the request in writing, with reasons for the denial. The explanation will include the law that DEL relied upon in its denial.
At his or her discretion, the public records officer may send the request records by e-mail, fax, postal mail, or commercial delivery. The records may be delivered on paper, computer or compact discs, or other methods.
(1) The size of the record requested. A large request generally will take more time than a small request.
(2) The location or locations where requested records may be. Records may be stored at different DEL offices, or at state records storage facilities.
(3) The case load of the person filling the request. While providing public records is an essential function of the agency, it is not required to abandon its other, nonpublic records functions.
Example: A child care licensor who fills the request must work the public records request around their other duties monitoring and licensing facilities.
(1) Locate and gather the information requested;
(2) Notify an individual or organization affected by the request, and to give them an opportunity to object if allowed by law;
(3) Determine whether: The information requested is exempt from disclosure; all or part of the request can be released; portions of the record must be redacted; or
(4) Wait for response after DEL has already contacted the requestor to clarify the intent, scope or specifics of the request. For example, if a request is objectively unclear, DEL will attempt to clarify. If the requestor fails to clarify the request within thirty days of the agency's request, the agency may consider the request abandoned. If the agency considers the request abandoned, it will send a closing letter to the requestor.
DEL will notify the requestor in writing if an extension is needed.
(1) The record is exempt from disclosure by law.
(2) The request is for lists of individuals for commercial purposes, including family home providers.
(3) The requestor has not asked for an identifiable record. The Public Records Act requires access to existing, identifiable public records in an agency's possession at the time of the request.
(4) The request requires DEL to collect or organize data to create a public record, or to give data that did not exist at the time of the public records request.
DEL is always prohibited by statute from disclosing lists of individuals, including family home providers, for commercial purposes.
The Public Records Act lists exemptions or allows for "other statute" exemptions. Requestors should be aware of the following exemptions, outside the Public Records Act, that restrict the availability of some documents held by DEL, for inspection and copying: For example, RCW 5.60.060(2) restricts privileged attorney-client communications between DEL staff and the office of the attorney general.
(1) Asking the public records officer for an internal DEL review.
(2) Asking for an external review by the attorney general's office.
Requestors may initiate this by sending a request for review to Public Records Review, Office of the Attorney General, P.O. Box 40100, Olympia, WA 98504-0100 or email@example.com.
(3) Asking for a judicial review.
All review requests must be in writing (letter, fax or e-mail). All review requests must specify the part or parts of the denial or redaction that the requestor wishes to be reviewed.
After receiving a request for an internal review, the public records officer will refer the matter for review to the agency communications manager who may consult with other agency leaders. The denial will either be upheld or reversed within two business days after the receipt of the review request.
To initiate a court review of a public records case, a requestor can file a "motion to show cause" which directs the agency to appear before the court and show any cause why the agency did not violate the act. The case must be filed in the superior court in the county in which the record is maintained.
(2) Costs for electronic records. The cost of electronic copies of records shall be determined by how the electronic records are delivered. DEL will charge no more than fair-market value for information that must be delivered on a CD-ROM, DVD or other tool. DEL may charge (put value) for a paper record to be scanned. There will be no charge for e-mailing electronic records, unless another cost applies, such as scanning.
(3) Costs of mailing. DEL may also charge actual costs of mailing or shipping a record, including the cost of the shipping container.
(4) Payment. Before beginning to make copies, the public records officer may require a deposit of up to ten percent of the estimated cost of copying all the records selected by the requestor. The public records officer may also require payment for the remainder of the copying costs before providing all the records. DEL will not charge sales tax when it makes copies of public records.
If all or part of a requested record is not paid for, or the requested record is not claimed within thirty calendar days, the department may consider the request as terminated. If terminated, the requestor must make a new records request to obtain the record.
Payment should be sent to the DEL Financial Services Office (P.O. Box 40970, Olympia, WA 98504-0970). Payment may be made by cash, check, or money order to the department of early learning. It should clearly be marked as payment for public records.