SHB 1037 -
By Representative Pollet
Strike everything after the enacting clause and insert the following:
"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 private 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, it is the
intent of the legislature 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. It is the intent of the
legislature to authorize agencies to establish such fees, without in
any manner limiting public inspection of records or delaying public
access to records.
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,)).
Public records may 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 primary 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) No fee shall be charged for the inspection of public records((.
No fee shall be charged for locating public documents and making them
available for copying.)), nor shall the public's right to disclosure
and provision of records be delayed by the provisions of this section
that authorize an agency to determine, based on evidence, that a
request is primarily for sale or resale. Except as provided in
subsection (2) of this section, no fee shall be charged for locating,
disclosing the existence of, or producing copies of public records. 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 primary purpose of
sale or resale of all or part of the record, unless an exemption as
provided in subsection (8) 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 primary
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 primarily for the purpose
of sale or resale, the agency may require the requestor to sign a
statement under penalty of perjury, attesting that the primary 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, or application, of a fee in writing to
the director or chief executive officer of the agency. The requestor
may bring such an appeal within thirty days of the agency's assessment
of the fee. Use of the agency appeals process provided under this
section is at the option of the requestor, who is not required to
follow this process as a condition of obtaining judicial review as
provided in RCW 42.56.550.
(6) When an agency charges a cost recovery fee pursuant to
subsection (2) of this section, it must provide to the requestor a
written basis for its determination that the request is primarily for
the purpose of sale or resale and no exemption from subsection (8) of
this section applies.
(7) An agency 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.
(8) The fee authorized in subsection (2) of this section is
applicable to a record request where the primary intended use of any
part of a public record or records, or information derived from public
records, in any form, is for the commercial purpose of sale or resale.
The fee authorized in subsection (2) of this section may not be
assessed if one or more of the following circumstances exists:
(a) The principal purpose of the request is not deemed a
"commercial purpose" because:
(i) The principal purpose of the request is to access and
disseminate information concerning news and current or passing events,
for articles of opinion or features of interest to the public, for the
purpose of academic, scientific, or public research or education, or
for the purpose of commenting to, or petitioning, the government;
(ii) The principal purpose of the request is public dissemination
or disclosure of information in order to contribute to public
understanding of the operations or activities of the government; or
(iii) The requestor is a representative of a religious, charitable,
educational, or other nonprofit organization or association and the
request is made in furtherance of the organization's or association's
nonprofit purpose and not for a different commercial purpose;
(b) Even if the request is for a commercial purpose, the fee is not
applicable because:
(i) The requestor is entitled to obtain the requested records
pursuant to a contract, memorandum of understanding, or other binding
agreement with the agency or under authority of law other than this
chapter;
(ii) The requestor can demonstrate that the requested records will
be used to comply with governmental permitting requirements or other
regulations;
(iii) 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
(iv) 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.
(9) 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 (8) 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.
(10) 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.
Sec. 4 RCW 42.56.550 and 2011 c 273 s 1 are each 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) Upon the motion of any person who believes that an agency has
required payment of a cost recovery fee in an amount not authorized by
RCW 42.56.080, for a request that is exempt, or of a requestor who is
exempt from the fee under RCW 42.56.120(8), the superior court in the
county in which a record is maintained may require the responsible
agency to show by a preponderance of the evidence that the request was
primarily for the purpose of sale or resale and that no exemption was
applicable.
(4) 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))) (5) 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 attorney 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 to exceed one hundred dollars for each
day that he or she was denied the right to inspect or copy said public
record.
(((5))) (6) For actions under this section against counties, the
venue provisions of RCW 36.01.050 apply.
(((6))) (7) 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."
Correct the title.
EFFECT: The striking amendment makes the following changes to
Substitute House Bill 1037:
Adds language clarifying that the Legislature does not intend in
any manner to authorize public agencies to limit public inspection of
records or delay public access to records in authorizing public
agencies to assess a cost recovery fee for production of records in
response to requests for the purpose of sale or resale.
Requires an agency charging a cost recovery fee to provide to the
requestor a written basis for its determination that the fee is
applicable and no exemption applies.
Makes changes in the categories of requests and requestors that are
exempt from the cost recovery fee, including: (1) Broadening the types
of nonprofit institutions, research purposes, and public dissemination
purposes that are exempt from the fee; and (2) expressly exempting
requests for the purpose of petitioning the government or contributing
to public understanding of government operations and activities.
Makes changes to an internal agency appeal process, providing a
requestor the option to appeal within 30 days an agency's determination
of or application of a cost recovery fee.
Provides for judicial review of agency determinations: (1) That
the cost recovery fee is applicable and no exemption applies; or (2) of
the amount of cost recovery fee that may be assessed. This judicial
review is available to a requestor, whether or not the requestor first
seeks to use the agency appeal process.