WSR 16-19-006 EXPEDITED RULES STATE INVESTMENT BOARD [Filed September 7, 2016, 3:54 p.m.]
Title of Rule and Other Identifying Information: Amendments to chapter 287-02 WAC, to provide rules for the Washington state investment board (WSIB) to implement the provisions of chapter 42.56 RCW relating to public records and to ensure compliance with that chapter.
NOTICE
THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Tish Day, State Investment Board, P.O. Box 40916, Olympia, WA 98504-0916, AND RECEIVED BY November 21, 2016.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Provide rules for the WSIB to implement the provisions of chapter 42.56 RCW, the Public Records Act (PRA) and to ensure the WSIB's compliance with the PRA. There are no anticipate[d] effects beyond bringing the WSIB into full compliance with RCW 42.56.040. The last revision to chapter 287-02 WAC was in January 2004.
The proposed amendment to chapter 287-02 WAC includes:
a. A description of the operational organization of the WSIB and the established places at which, and the WSIB employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain copies of WSIB decisions;
b. An expanded definition section;
c. Statements of the general course and method by which the WSIB's operations are channeled and determined, including the nature and requirements of all formal and informal procedures available;
d. Rules of procedure for requesting public records;
e. Rules of procedure for the processing of public records requests by the WSIB;
f. A current list containing every law outside the PRA that the WSIB believes exempts or prohibits disclosure of certain information or records; and
g. Substantive rules of general applicability adopted by the WSIB as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the WSIB.
Statutory Authority for Adoption: RCW 42.56.040, [42.56].070, [42.56].100.
Statute Being Implemented: Chapter 42.56 RCW.
Rule is necessary because of state court decision, 177 Wn.2d 417 (2013).
Name of Proponent: WSIB, governmental.
Name of Agency Personnel Responsible for Drafting: John Lynch, Olympia, Washington, (360) 956-4748; Implementation: Chris Phillips, Olympia, Washington, (360) 956-4616; and Enforcement: Public Records Manager, Olympia, Washington, (360) 956-4748.
September 7, 2016
Ian Cameron
Chief Operating Officer
AMENDATORY SECTION (Amending WSR 81-23-012, filed 11/10/81)
WAC 287-02-010 Purpose.
The purpose of this chapter ((shall be to ensure compliance by the state investment board with the provisions of chapter 42.17 RCW dealing with public records)) is to provide rules for the Washington state investment board to implement the provisions of chapter 42.56 RCW relating to public records and to ensure compliance with that chapter.
AMENDATORY SECTION (Amending WSR 81-23-012, filed 11/10/81)
WAC 287-02-020 Definitions.
((The following definitions shall apply to this chapter:
(1) "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.
(2) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic of paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents.
(3) "State investment board" means the board established by chapter 3, Laws of 1981. The state investment board shall hereinafter be referred to as the "board." Where appropriate, the term state investment board also refers to the staff and employees of the board.)) The definitions set forth in RCW 42.56.010 apply throughout this chapter. In addition, the definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
"Day" unless otherwise stated, means any day of the week on which banks and the NYSE are open for business for the conduct of all regular business.
"Executive director" means the executive director of the Washington state investment board.
"Page" means one impression on a single side of a sheet of paper. It also applies to one electronic image of one side of a sheet of paper.
"Public records manager" means the public records manager or designee for the Washington state investment board appointed by the executive director.
"WSIB" or "board" means the Washington state investment board established in chapter 3, Laws of 1981. Where appropriate, WSIB or agency also refers to the staff and employees of the Washington state investment board.
AMENDATORY SECTION (Amending WSR 04-03-114, filed 1/21/04, effective 2/21/04)
WAC 287-02-030 Description of ((central and field organization of)) the Washington state investment board.
((The state investment board is a state agency empowered to perform all duties prescribed by law with respect to the investment of trust and public funds. The administrative offices of the state investment board and its staff are located at 2100 Evergreen Park Drive S.W., Olympia, Washington.)) The Washington state investment board, created in chapter 3, Laws of 1981, is an independent board of trustees whose fiduciary responsibility is to manage retirement and public fund investments with the highest standard of professional conduct. The board's primary investment objective is to maximize returns at a prudent level of risk for the exclusive benefit of fund participants and beneficiaries.
Individual board members are appointed by the chair to serve on any of the board's four different committees which act as extensions of the board. The committees' function is to efficiently analyze investment and governance issues with greater scrutiny than would be practicable for the full board. Committee recommendations are brought to the board for consideration and a vote. The four committees are:
Administrative committee
The administrative committee oversees organizational, personnel, budget, legal, and legislative issues, as well as strategic asset allocation.
Audit committee
The audit committee assists the board in financial oversight of the WSIB including risk management, compliance monitoring, internal and external audits, corporate governance and proxy voting.
Private markets committee
The private markets committee develops policy and structure for private market and real estate opportunities and reviews those investments for recommendations to the board.
Public markets committee
The public markets committee develops policy and structure for public market investments (fixed income, domestic equity, international equity) and reviews individual equity managers to recommend to the board.
NEW SECTION
WAC 287-02-033 Public records manager.
(1) The public records manager is appointed by the executive director and is located in the operations division of the WSIB.
(2) The public records manager is in charge of the WSIB's public records program. The public records manager is responsible for the implementation of the WSIB's rules regarding the release of public records for inspection and copying, coordinating the WSIB staff in this regard, and overseeing compliance with the Public Records Act requirements in chapter 42.56 RCW.
(3) The public records manager may choose a designee to act in his or her place to carry out the responsibilities in this chapter, including processing and responding to public records requests. The WSIB's public records manager will provide the fullest assistance to requestors.
AMENDATORY SECTION (Amending WSR 81-23-012, filed 11/10/81)
WAC 287-02-040 Organizations, operations and procedures.
The state investment board is charged with the duty to invest certain trust and public funds, as set forth in RCW 43.84.150, and chapter 3, Laws of 1981. The board ((shall)) meets at least quarterly, at times and locations determined by the board, in order to perform its duties. All such meetings ((will)) comply with the Open Public Meetings Act.
Operative structure
The WSIB is a small agency with staff working in three divisions - Investments, operations, and institutional relations. The WSIB's executive director is appointed by the board to oversee the staff, develop and recommend agency and investment policies for board adoption, and ensure adherence to state policies and laws.
The WSIB framework is similar to most investment management organizations, with a board and executive management providing firm-wide leadership with major operating units for investment management, operations, research, risk control, financial management and administration, and public affairs or client services.
Investment professionals comprise the investment division which manages investments in major asset classes including public equity, private equity, real estate, tangible assets, and fixed income. The investment division is also aided by a senior investment officer whose role is the WSIB's primary portfolio risk analyst and the development of asset allocation strategies. The division employs both internal and external investment management strategies.
The operations division provides a number of services in support of the investment function, including trade settlement, cash management, private market funding, cash and stock distributions, foreign and domestic tax matters, and investment compliance monitoring. It provides agency-wide risk management, information systems management, human resources, and administrative services.
The institutional relations division oversees essential areas of strategic communications and related duties typically found in a client services division of an investment management entity. These duties include performance reporting, annual report preparation, proxy voting, corporate governance and managing interactions and relationships with external entities to ensure transparency and dissemination of accurate and timely information.
The administrative office of the investment board and its staff are located at 2100 Evergreen Park Drive S.W., Olympia, Washington 98502.
NEW SECTION
WAC 287-02-045 Processing of public records requests—Request.
(1) Any person wishing to inspect or copy public records of WSIB may submit the request in writing using the WSIB's request form, or by letter, fax, or e-mail addressed to the public records manager. The request should include the following information:
• Name of requestor;
• Address of requestor;
• Other contact information, including telephone number and any e-mail address;
• Identification of the public records adequate for the public records manager to locate the records; and
• The date and time of day of the request.
(2) If the requestor wishes to have copies of the records made instead of inspecting them, he or she should so indicate. Costs will be assessed in compliance with WAC 287-02-075.
(3) A request form is available for use by requestors at the office of the public records manager and online at http://www.sib.wa.gov.
(4) The public records manager may accept public records requests by telephone or in person; however, the requesting party may be asked to reduce the request to writing. In the alternative, the public records manager may confirm receipt of the request and restate the substance of the request in writing.
NEW SECTION
WAC 287-02-047 Processing of public records requests—Response.
(1) Within five business days of receipt of the request, the public records manager will do one or more of the following:
(a) Make the records available for inspection or copying;
(b) If copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon, send the copies to the requestor;
(c) Provide a reasonable estimate of when records will be available; or
(d) If the request is unclear or does not sufficiently identify the requested records, obtain clarification from the requestor. Such clarification may be obtained and provided by telephone. The public records manager may then revise the estimate of when records will be available; or
(e) Deny the request.
(2) In the event that the requested records contain information implicating a third party's privacy or financial interest and any exemption from disclosure of that information arguably applies, the public records manager will, prior to releasing the records to the requestor, give notice to such third parties whose rights may be affected by the disclosure. Such notice is provided so as to make it possible for those third parties to seek an order from a court to prevent or limit the disclosure pursuant to RCW 42.56.540.
The notice shall inform the third party that a request has been made for a record that pertains to the third party and that the WSIB plans to disclose the record in a specified amount of time unless the third party obtains an injunction pursuant to RCW 42.56.540 blocking disclosure. The WSIB shall inform the record requestor that it is providing third-party notice.
(3) Some records are exempt from disclosure, in whole or in part. If WSIB believes that an entire record is exempt from disclosure and should be withheld, the public records manager will identify the record, state the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, the public records manager will redact the exempt portions, provide the nonexempt portions, state the specific exemption and provide a brief explanation of why the portions of the record are exempt from disclosure.
(4) When the requestor either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay the deposit or final payment for the requested copies, the public records manager will close the request and indicate to the requestor that WSIB has closed the request.
AMENDATORY SECTION (Amending WSR 81-23-012, filed 11/10/81)
WAC 287-02-050 ((Public)) Availability of records ((available)).
((All public records of the state investment board as defined in WAC 287-02-020 are deemed to be available for public inspection and copying pursuant to these rules, except as otherwise provided by RCW 42.17.370.)) Public records are available for inspection and the preparation of requested copying during the WSIB's normal business hours. For the purposes of this chapter, normal business hours of WSIB are 8:00 a.m. to noon and 1:00 p.m. to 5:00 p.m., Monday through Friday, excluding legal holidays. Records must be inspected at the main office of the WSIB or other agency location as applicable.
NEW SECTION
WAC 287-02-055 Inspection of public records.
(1) Consistent with other demands, WSIB will provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter any document.
(2) After inspection is complete, the requestor shall identify which documents he or she wishes the agency to copy. Consistent with other demands and the volume of documents requested, WSIB may copy the document at that time or provide the copies to the requestor at a later date.
(3) Within thirty days of the WSIB's notification that the records are available for inspection or copying, the requestor must claim or review the assembled records. The agency will notify the requestor in writing of this requirement and inform the requestor that he or she should contact the agency to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the thirty-day period or make other arrangements, the WSIB may close the request and refile the assembled records. If the requestor makes a request for the same records, it will be processed as a new request.
(4) When the inspection of the requested records is complete and all requested copies are provided, the public records manager will indicate that WSIB has completed its search for the requested records and made any nonexempt records available for inspection.
NEW SECTION
WAC 287-02-057 Protection of public records.
(1) The WSIB will maintain its records in a reasonably organized manner. The WSIB will take reasonable actions to protect records from damage and disorganization. A requestor shall not take WSIB records from WSIB offices without the permission of the public records manager. A variety of records is available on the WSIB web site at (www.sib.wa.gov). Requestors are encouraged to view the documents available on the web site prior to submitting a records request.
(2) Records will be made available to the requestor subject to the following restrictions:
(a) The records may not be removed from the area designated;
(b) The quantity of records may be limited in accordance with the requested use;
(c) All possible care will be taken by the requestor to prevent damage to the records;
(d) Records may not be marked, altered, cut or mutilated in any way;
(e) Use of liquids and fountain pens and eating, drinking, and smoking while utilizing the records is prohibited;
(f) Records shall not be defaced in any way including writing on, folding or folding anew if in folded form, tracing or fastening with clips or other fasteners except those that may already exist in the file;
(g) Records must be kept in the order in which received;
(h) All copying of records will be done by WSIB personnel; and
(i) Records will be returned to the public records manager by the requestor when no longer required and no later than the end of the customary office hours as set forth in WAC 287-02-035.
NEW SECTION
WAC 287-02-065 Response to public records request—Installments.
(1) When a response to a public records request is complex or involves a large number of records, the public records manager may provide access for inspection and copying in installments pursuant to RCW 42.56.080.
(2) The requestor will be notified when an installment is ready for inspection. If, within thirty days, the requestor fails to inspect the entire set of records or one or more of the installments, the public records manager may close the request.
(3) When the request is for copies of public records, the public records manager may require payment for each installment either prior to providing the installment or prior to providing subsequent installments. In addition, the requestor may be required to provide a deposit up to ten percent of the estimated cost of copying all records selected by the requestor. If the requestor fails to pay the required cost within thirty days, the public records manager may close the request.
NEW SECTION
WAC 287-02-067 Processing public records requests—Electronic records.
(1) The process for requesting electronic public records is the same as for requesting paper public records.
(2) When a requestor requests records in an electronic format, the public records manager will provide available nonexempt electronic public records or portions of such records that are reasonably locatable in an electronic format that is used by the agency and is generally commercially available, or in a format that is reasonably translatable from the format in which the agency keeps the record, or as otherwise agreed to between the requestor and the public disclosure manager.
(3) Whenever possible, WSIB will provide records in electronic format. If the WSIB has only a paper copy of the record, the WSIB, when feasible, may scan the paper record and provide the resulting electronic copy to the requestor. If the WSIB maintains the record in electronic format, the record will be provided in the maintained electronic format unless the requestor specifically asks to receive the record in paper copies or it is otherwise not feasible to provide the record in electronic format.
(4) If a record exists on a web page, WSIB will respond to a request for the record by providing the link to the record on the web page.
(5) WSIB is not required to create a record that does not otherwise exist.
(6) Costs for providing electronic records as provided in this section are governed by WAC 287-02-075.
AMENDATORY SECTION (Amending WSR 81-23-012, filed 11/10/81)
WAC 287-02-070 ((Office hours.)) Exemptions.
((Public records shall be available for inspection and copying during the customary office hours of the state investment board. For the purposes of this chapter, the customary office hours shall be from 8:00 a.m. to 5:00 p.m., Monday through Friday excluding legal holidays.)) (1) WSIB reserves the right to determine that a public record requested is exempt, in whole or in part, under the provisions of chapter 42.56 RCW or other applicable provision of law.
(2) Financial and commercial information supplied to the WSIB related to the investment of public trust or retirement funds the disclosure of which would result in loss to the trust funds or private loss to the providers of the information is exempt under RCW 42.56.270(6).
(3) In addition, there are exemptions outside the Public Records Act that restrict the availability of some documents held by WSIB for inspection and copying; to include, but not limited to, chapter 19.108 RCW (Uniform Trade Secrets Act) and RCW 5.60.060 (attorney-client privilege).
(4) In addition, WSIB reserves the right to delete identifying details when it makes available any public record in cases when there is reason to believe that disclosure of such details would be an invasion of personal privacy protected by chapter 42.56 RCW.
(5) The WSIB is prohibited by statute from disclosing lists of individuals for commercial purposes pursuant to RCW 42.56.070(9).
NEW SECTION
WAC 287-02-075 Costs of providing public records.
(1) There is no fee for inspecting public records. WSIB may impose a charge for providing public records. WSIB will maintain a fee schedule on its web site.
(2) The charge for providing public records may be the actual cost incident to providing the records.
(a) The charge may include the actual cost of the postage or delivery, including the cost of the shipping container, cost of duplicating tape recordings, videotapes, photographs, slides, disks or similar media.
(b) There will be no charge for e-mailing electronic records to a requestor, unless another cost applies.
(3) If determining the actual cost is too burdensome or if the cost cannot be determined, WSIB may charge fifteen cents for each page, however produced.
(4) Before beginning to copy public records, the public records manager may require:
(a) A deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor;
(b) The payment of the remainder of the copying costs before providing all the records; or
(c) The payment of the costs of copying an installment before providing that installment. The WSIB will not charge sales tax when it makes copies of public records.
(5) Payment may be made by cash in the exact amount charged, check, or money order to the Washington state investment board.
AMENDATORY SECTION (Amending WSR 81-23-012, filed 11/10/81)
WAC 287-02-080 Review of denials of requests for public records.
((In accordance with requirements of chapter 42.17 RCW that agencies prevent unreasonable invasions of privacy, protect public records from damage or disorganization, and prevent excessive interference with essential functions of the agency, public records may be inspected or copied or copies of such records may be obtained, by members of the public, upon compliance with the following procedures:
(1) A request shall be made in writing upon a form prescribed by the state investment board which shall be available at its administrative office. The form shall be presented to the public records officer, or to any member of the board's staff, if the public records officer is not available at the administrative office of the board during customary office hours. The request shall include the following information:
(a) The name of the person requesting the record;
(b) The time of day and calendar date on which the request was made;
(c) The nature of the request;
(d) If the matter requested is referenced within the current index maintained by the records officer, a reference to the requested record as it is described in such current index;
(e) If the requested matter is not identifiable by reference to the board's current index, and appropriate description of the record requested.
(2) In all cases in which a member of the public is making a request, it shall be the obligation of the public records officer or staff member to whom the request is made to assist the member of the public in appropriately identifying the public record requested.)) (1)(a) Any person who has been denied an opportunity to inspect or copy a public record by the WSIB or who believes that the WSIB has not made a reasonable estimate of the time required to respond to a public record request may petition the WSIB for prompt review of its decision.
(b) The petition shall be in writing and shall include a copy of, or reasonably identify, the written statement by the public records manager denying the request or providing the estimate.
(c) The petition shall be sent to the public records manager who shall promptly provide the petition and any other relevant information to the agency official designated by the agency to conduct the review.
(2) The designated WSIB official will immediately consider the petition and either affirm or reverse the denial or the estimate. This review will be complete within two business days following WSIB's receipt of the petition, or within such times as mutually agreed by WSIB and the requestor.
(3) Administrative remedies shall not be considered exhausted until the WSIB has returned the petition with a decision or until the close of the second business day following denial of inspection, whichever occurs first.
(4) Any person may obtain court review of denials of public records requests pursuant to RCW 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.
NEW SECTION
WAC 287-02-085 Records index.
(1) The state general records retention schedule and the WSIB's unique records retention schedule, as established and approved by the state records committee, serve as the index for the identification and location of the WSIB's records, including those described in RCW 42.56.070(5).
(2) The current index, as described in subsection (1) of this section, is available to all persons under the same rules and on the same conditions as are applied to public records available for inspection. The index can be found on the WSIB web site at http://www.sib.wa.gov.
AMENDATORY SECTION (Amending WSR 81-23-012, filed 11/10/81)
WAC 287-02-090 ((Copying.)) Communications with the agency.
((No fee shall be charged for the inspection of public records. The board shall charge a fee for copying public records not to exceed 50 cents per page. This charge is the amount necessary to reimburse the board for its actual costs incident to such copying.)) All communications with WSIB to access public records of the WSIB or seek assistance in making such a request, or for the purpose of obtaining information, making submittals or requests, or making inquiries concerning the agency's rules for compliance with chapter 42.56 RCW shall be addressed as follows:
Washington State Investment Board
Public Records Manager
2100 Evergreen Park Drive S.W.
P.O. Box 40916
Olympia, WA 98504-0916
The telephone number of the public records manager is 360-956-4748, or you can e-mail your request to PublicRecordsRequest@sib.wa.gov.
Information is also available at the WSIB web site at http://www.SIB.wa.gov.
NEW SECTION
The following sections of the Washington Administrative Code are decodified and recodified as follows:
REPEALER
The following sections of the Washington Administrative Code are repealed:
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