AN ACT Relating to improving public records administration; amending RCW 42.56.010, 42.56.152, 42.56.520, 42.56.570, 40.14.024, and 36.22.175; adding a new section to chapter 40.14 RCW; creating new sections; and providing expiration dates.

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

Sec. 1.  RCW 42.56.010 and 2010 c 204 s 1005 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency.

(2) "Person in interest" means the person who is the subject of a record or any representative designated by that person, except that if that person is under a legal disability, "person in interest" means and includes the parent or duly appointed legal representative.

(3) "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. For the office of the secretary of the senate and the office of the chief clerk of the house of representatives, public records means legislative records as defined in RCW 40.14.100 and also means the following: All budget and financial records; personnel leave, travel, and payroll records; records of legislative sessions; reports submitted to the legislature; and any other record designated a public record by any official action of the senate or the house of representatives. This definition does not include records that are not otherwise required to be retained by the agency and are held by volunteers who:

(4) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.

Sec. 2.  RCW 42.56.152 and 2014 c 66 s 4 are each amended to read as follows:

(1) Public records officers designated under RCW 42.56.580 and records officers designated under RCW 40.14.040 must complete a training course regarding the provisions of this chapter, and also chapter 40.14 RCW for records retention.

(2) Public records officers must:

(a) Complete training no later than ninety days after assuming responsibilities as a public records officer or records manager; and

(b) Complete refresher training at intervals of no more than four years as long as they maintain the designation.

(3) Training must be consistent with the attorney general's model rules for compliance with the public records act.

(4) Training may be completed remotely with technology including but not limited to internet-based training.

Sec. 3.  RCW 42.56.520 and 2010 c 69 s 2 are each amended to read as follows:

(1) Responses to requests for public records shall be made promptly by agencies, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives. Within five business days of receiving a public record request, an agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives must respond ((by either)) in one of the ways provided in this subsection (1):

(a) Providing the record;

(((2))) (b) Providing an internet address and link on the agency's web site to the specific records requested, except that if the requester notifies the agency that he or she cannot access the records through the internet, then the agency must provide copies of the record or allow the requester to view copies using an agency computer;

(((3))) (c) Acknowledging that the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives has received the request and providing a reasonable estimate of the time the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives will require to respond to the request;

(d) Acknowledging that the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives has received the request and asking the requestor to provide clarification for a request that is unclear, and providing, to the greatest extent possible, a reasonable estimate of the time the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives will require to respond to the request if it is not clarified; or

(((4))) (e) Denying the public record request.

(2) Additional time required to respond to a request may be based upon the need to clarify the intent of the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request, or to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request.

(3)(a) In acknowledging receipt of a public record request that is unclear, an agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives may ask the requestor to clarify what information the requestor is seeking.

(b) If the requestor fails to respond to an agency request to clarify the request, and the entire request is unclear, the agency, the office of the secretary of the senate, or the office of the chief clerk of the house of representatives need not respond to it. Otherwise, the agency must respond, pursuant to this section, to those portions of the request that are clear.

(4) Denials of requests must be accompanied by a written statement of the specific reasons therefor. Agencies, the office of the secretary of the senate, and the office of the chief clerk of the house of representatives shall establish mechanisms for the most prompt possible review of decisions denying inspection, and such review shall be deemed completed at the end of the second business day following the denial of inspection and shall constitute final agency action or final action by the office of the secretary of the senate or the office of the chief clerk of the house of representatives for the purposes of judicial review.

Sec. 4.  RCW 42.56.570 and 2007 c 197 s 8 are each amended to read as follows:

(1) The attorney general's office shall publish, and update when appropriate, a pamphlet, written in plain language, explaining this chapter.

(2) The attorney general, by February 1, 2006, shall adopt by rule ((an)) advisory model rules for state and local agencies, as defined in RCW 42.56.010, addressing the following subjects:

(a) Providing fullest assistance to requestors;

(b) Fulfilling large requests in the most efficient manner;

(c) Fulfilling requests for electronic records; and

(d) Any other issues pertaining to public disclosure as determined by the attorney general.

(3) The attorney general, in his or her discretion, may from time to time revise the model rule.

Sec. 5.  RCW 40.14.024 and 2008 c 328 s 6005 are each amended to read as follows:

The local government archives account is created in the state treasury. All receipts collected by the county auditors under RCW 40.14.027 and 36.22.175 for local government services, such as providing records ((scheduling)) schedule compliance, security microfilm inspection and storage, archival preservation, cataloging, and indexing for local government records and digital data and access to those records and data through the regional branch archives of the division of archives and records management, must be deposited into the account, and expenditures from the account may be used only for these purposes. ((During the 2007-2009 biennium, the legislature may transfer from the local government archives account to the Washington state heritage center account such amounts as reflect the excess fund balance in the account.)) Any amounts deposited in the account in accordance with RCW 36.22.175(4) may only be expended for the purposes authorized under that provision as follows: No more than fifty percent of funding may be used for the attorney general's consultation program and the state archivist's training services, and the remainder is to be used for the competitive grant program.

NEW SECTION.  Sec. 6.  A new section is added to chapter 40.14 RCW to read as follows:

(1) The division of archives and records management in the office of the secretary of state must establish and administer a competitive grant program for local agencies to improve technology information systems for public record retention, management, and disclosure, and any related training. The division of archives and records management may use up to six percent of amounts appropriated for the program for administration of the grant program. The program in this subsection ceases to exist June 30, 2020.

(2) Any local agency may apply to the grant program. The division of archives and records management in the office of the secretary of state must award grants annually. The division of archives and records management must consult with the chief information officer to develop the criteria for grant recipient selection with a preference given to small local governmental agencies based on the applicant agency's need and ability to improve its information technology systems for public record retention, management, and disclosure. The division of archives and records management may award grants for specific hardware, software, equipment, technology services management and training needs, indexing for local records and digital data, and other resources for improving information technology systems. To the extent possible, information technology systems, processes, training, and other resources for improving information technology systems for records retention and distribution may be replicated and shared with other governmental entities. Grants are provided for one-time investments and are not an ongoing source of revenue for operation or management costs. A grantee may not supplant local funding with grant funding provided by the office of the secretary of state. The program in this subsection ceases to exist June 30, 2020.

(3) The joint legislative audit and review committee must conduct a review of the attorney general's consultation program and the state archivist's training services created under section 4, chapter . . ., Laws of 2017 (section 4 of this act), and the local government competitive grant program created under this section. The review must include:

(a)(i) Information on the number of local governments served, the types of consultation and training provided, and the implementation of any practices adopted from the attorney general's consultation program and the state archivist's training services; and

(ii) The effectiveness of the consultation program and the training services in providing assistance for local governments; and

(b)(i) Information on the number of local governments that applied for and participated in the competitive grant program under this section, the amount of funding awarded through the grant program, and how such funding was used; and

(ii) The effectiveness of the grant program in improving local government technology information systems for public records retention, management, disclosure, and training.

(4) Each agency shall maintain a log of public records requests submitted to and processed by the agency, which shall include but not be limited to the following information for each request: The identity of the requestor if provided by the requestor, the date the request was received, the text of the original request, a description of the records produced in response to the request, a description of the records redacted or withheld and the reasons therefor, and the date of the final disposition of the request. The log must be retained by the agency in accordance with the relevant record retention schedule established under this chapter, and shall be a public record subject to disclosure under chapter 42.56 RCW.

(5) To improve best practices for dissemination of public records, each agency with actual staff and legal costs associated with fulfilling public records requests of at least one hundred thousand dollars during the prior fiscal year must, and each agency with such estimated costs of less than one hundred thousand dollars during the prior fiscal year may, report to the joint legislative audit and review committee by July 1st of each subsequent year the following metrics, measured over the preceding year:

(a) An identification of leading practices and processes for records management and retention, including technological upgrades, and what percentage of those leading practices and processes were implemented by the agency;

(b) The average length of time taken to acknowledge receipt of a public records request;

(c) The proportion of requests where the agency provided the requested records within five days of receipt of the request compared to the proportion of requests where the agency provided an estimate of an anticipated response time beyond five days of receipt of the request;

(d) A comparison of the agency's average initial estimate provided for full disclosure of responsive records with the actual time when all responsive records were fully disclosed, including whether the agency sent subsequent estimates of an anticipated response time;

(e) The number of requests where the agency formally sought additional clarification from the requestor;

(f) The number of requests denied and the most common reasons for denying requests;

(g) The number of requests abandoned by requestors;

(h) To the extent the information is known by the agency, requests by type of requestor, including individuals, law firms, organizations, insurers, governments, incarcerated persons, the media, anonymous requestors, current or former employees, and others;

(i) Which portion of requests were fulfilled electronically compared to requests fulfilled by physical records;

(j) The number of requests where the agency was required to scan physical records electronically to fulfill disclosure;

(k) The estimated agency staff time spent on each individual request;

(l) The estimated costs incurred by the agency in fulfilling records requests, including costs for staff compensation and legal review, and a measure of the average cost per request;

(m) The number of claims filed alleging a violation of chapter 42.56 RCW or other public records statutes in the past year involving the agency, categorized by type and exemption at issue, if applicable;

(n) The costs incurred by the agency litigating claims alleging a violation of chapter 42.56 RCW or other public records statutes in the past year, including any penalties imposed on the agency;

(o) The costs incurred by the agency with managing and retaining records, including staff compensation and purchases of equipment, hardware, software, and services to manage and retain public records or otherwise assist in the fulfillment of public records requests;

(p) Expenses recovered by the agency from requestors for fulfilling public records requests, including any customized service charges; and

(q) Measures of requestor satisfaction with agency responses, communication, and processes relating to the fulfillment of public records requests.

(6) The joint legislative audit and review committee must consult with state and local agencies to develop a reporting method and clearly define standardized metrics in accordance with this section.

(7) By December 1, 2019, the joint legislative audit and review committee must report to the legislature on its findings from the review, including recommendations on whether the competitive grant program, the attorney general's consultation program, and the state archivist's training services should continue or be allowed to expire.

Sec. 7.  RCW 36.22.175 and 2011 1st sp.s. c 50 s 931 are each amended to read as follows:

(1)(a) In addition to any other charge authorized by law, the county auditor shall charge a surcharge of one dollar per instrument for each document recorded. Revenue generated through this surcharge shall be transmitted monthly to the state treasurer for deposit in the local government archives account under RCW 40.14.024. These funds shall be used solely for providing records ((scheduling)) schedule compliance, security microfilm inspection and storage, archival preservation, cataloging, and indexing for local government records and digital data and access to those records and data through the regional branch archives of the division of archives and records management.

(b) The division of archives and records management within the office of the secretary of state shall provide records management training for local governments and shall establish a competitive grant program to solicit and prioritize project proposals from local governments for potential funding to be paid for by funds from the auditor surcharge and tax warrant surcharge revenues. Application for specific projects may be made by local government agencies only. The state archivist in consultation with the advisory committee established under RCW 40.14.027 shall adopt rules governing project eligibility, evaluation, awarding of grants, and other criteria including requirements for records management training for grant recipients.

(2) The advisory committee established under RCW 40.14.027 shall review grant proposals and establish a prioritized list of projects to be considered for funding by January 1st of each even-numbered year, beginning in 2002. The evaluation of proposals and development of the prioritized list must be developed through open public meetings. Funding for projects shall be granted according to the ranking of each application on the prioritized list and projects will be funded only to the extent that funds are available. A grant award may have an effective date other than the date the project is placed on the prioritized list.

(3)(a) In addition to any other surcharge authorized by law, the county auditor shall charge a surcharge of one dollar per instrument for every document recorded after January 1, 2002. Revenue generated through this surcharge shall be transmitted to the state treasurer monthly for deposit in the local government archives account under RCW 40.14.024 to be used exclusively for: (i) The construction and improvement of a specialized regional facility located in eastern Washington designed to serve the archives, records management, and digital data management needs of local government; and (ii) payment of the certificate of participation issued for the Washington state heritage center to the extent there is an excess fund balance in the account and fees generated under RCW 36.18.010 and 43.07.128 are insufficient to meet debt service payments on the certificate of participation.

(b) To the extent the facilities are used for the storage and retrieval of state agency records and digital data, that portion of the construction of such facilities used for state government records and data shall be supported by other charges and fees paid by state agencies and shall not be supported by the surcharge authorized in this subsection, except that to the extent there is an excess fund balance in the account and fees generated under RCW 36.18.010 and 43.07.128 are insufficient to meet debt service payments for the Washington state heritage center, the local government archives account under RCW 40.14.024 may be used for the Washington state heritage center.

(c) At such time that all debt service from construction of the specialized regional archive facility located in eastern Washington has been paid, fifty percent of the surcharge authorized by this subsection shall be reverted to the centennial document preservation and modernization account as prescribed in RCW 36.22.170 and fifty percent of the surcharge authorized by this section shall be reverted to the state treasurer for deposit in the public records efficiency, preservation, and access account to serve the archives, records management, and digital data management needs of local government, except that the state treasurer shall not revert funds to the centennial document preservation and modernization account and to the public records efficiency, preservation, and access account if fees generated under RCW 36.18.010 and 43.07.128 are insufficient to meet debt service payments on the Washington state heritage center.

(2) The division of archives and records management must hire a consultant to conduct the study.

(3) At a minimum, the report must include:

(a) The feasibility of Washington creating a central site from which a user can submit a records request and receive a timely response to such request;

(b) An examination of the experience in other states, including but not limited to the state of Utah, that have implemented an electronic open records portal;

(c) Whether the open records portals in other states serve as central repositories and archives for the purpose of all public records on behalf of local and state agencies;

(d) Whether other states' open records portals track and provide a timeline where each request is being responded to in the process;

(e) The cost of creating the open records portal in other states and the amount of funds local and state agencies or any other entities contributed to the start-up and ongoing costs to operate the open records portal;

(f) The length of time it took for other states to develop an open records portal from its initial start-up to its current full operation;

(g) The length of time it would take for Washington to develop and implement an open records portal from start-up to full operation that is similar to the portals located in other states;

(h) The length of time it would take for Washington to develop and implement an open records portal from start-up to full operation that would include: (i) The portal collecting, archiving, and holding all public records from local and state governmental agencies in Washington; (ii) the portal being capable of allowing users to submit a public records request through a central site; and (iii) the records portal operating as a central site for answering and providing requested public records to a user;

(i) The estimated cost to develop and implement an open records portal that is: (i) Similar to the open records portals located in other states referenced and reviewed in (g) of this subsection; and (ii) a full open records portal pursuant to (h) of this subsection. In both instances, the costs must include costs associated with local and state governmental agencies in Washington participating in the portal and any needed supporting infrastructure, staffing, and training requirements;

(j) How much is charged and how fees are collected from a user requesting a public record through other states' open records portals;

(k) The feasibility of whether an open records portal created in Washington would be able to track all public records requests, when such requests for public records are made through the open records portal, and provide a timeline where each request is being responded to in the process;

(l) The feasibility of whether an open records portal created in Washington would be able to directly respond to answering a user's public records request and, if not, the feasibility of the portal tracking when a local or state agency responds to such a request and providing a timeline where each request is being responded to in the process;

(m) The feasibility of creating an open records portal in Washington that notifies a requestor that the request has been received and either immediately provides the requestor with a copy of the requested record, notifies the requestor that the record is not available, or notifies the requestor that because of the extraordinary request the record will be available on a date certain;

(n) The feasibility of creating an open records portal through which a requestor can make a request and receive a response through a single internet web site relating to public records information, and the feasibility of agencies managing internet web sites to make public access easier and reduce the number of requests related to the same topic through best practices by offering to post different categories of requested records on the web site in a manner that is responsive to records requests; and

(o) The allocation of liability between the agency operating an open records portal and any agency that provides records through the portal or accepts requests for public records through the portal in the event of litigation regarding denial of access to records or unreasonable estimate of time to produce records in response to a request.

(4) A report must be completed with findings and recommendations on the experience of the electronic open records portal created in other states and the feasibility of creating a central statewide open records portal in Washington, as well as recommendations and best management practices for agencies to post records that are responsive to records requests on an agency internet web site and take into consideration various categories of records and agency capacities in order to provide broader public access to records of public interest and to reduce the number of requests relating to the same topic. The report must be submitted to the governor, the appropriate committees of the legislature, and members of the stakeholder group in section 9 of this act, by September 1, 2018.

(5) This section expires December 31, 2018.

(2) The stakeholder group must include seven members as provided in this subsection.

(a) The majority leader and the minority leader of the senate shall appoint one member from each of the two largest caucuses of the senate.

(b) The majority leader and the minority leader of the house of representatives shall appoint one member from each of the two largest caucuses of the house of representatives.

(c) The president of the senate and the speaker of the house of representatives, in consultation with the division of archives and records management, jointly shall appoint the remaining three members. The remaining three members must be representatives of the community who have experience in the retention and disclosure of public records.

(3) This section expires September 30, 2018.

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