Original Notice.

Preproposal statement of inquiry was filed as WSR 99-07-104.

Title of Rule: Repeal chapter 388-320 WAC, Public records disclosure and replace with chapter 388-01 WAC, DSHS organization/disclosure of public records. See Summary below.

Purpose: Repeals old chapter 388-320 WAC, Public records disclosure--Administrative procedures and replaces it with new chapter 388-01 WAC, DSHS organization/disclosure of public records. Chapter 388-01 WAC is written in clear rule writing style to comply with the criteria in the Governor's Executive Order 97-02. These rules clearly explain how individuals or organizations request public records from DSHS, and how DSHS responds to public record requests.

Statutory Authority for Adoption: RCW 42.17.250 and 34.05.220.

Statute Being Implemented: RCW 42.17.250 and 34.05.220.

Summary:

New WAC number replaces	Repealed WAC No.	Summary
388-01-010 What are the purposes of this chapter?	388-320-010	Describes the purposes of the chapter.
388-01-020 How is DSHS organized?	388-320-030	Describes the organization of DSHS.
388-01-030 What department records are considered public?		Describes what DSHS records are considered "public."
388-01-040 What public records are available for release?	388-320-100, 388-320-220	Describes what DSHS records are available for release.
388-01-050 Who should be contacted to request a public record?	388-320-110, 388-320-115, 388-320-130	Describes who to contact to request a public record.
388-01-060 How can an individual request a public record?	388-320-130	Explains how an individual can request a public record.
388-01-070 When can a public record be examined?	388-320-130	States the hours when a public record can be examined.
388-01-080 Does DSHS charge for examining or copying public records?	388-320-140	Explains the fees DSHS charges for copies of public records.
388-01-090 When and how must DSHS respond to a public record request?	388-320-100, 388-320-205	Describes what DSHS must do to respond to a public record request.
388-01-100 What if DSHS fails to respond to a public record request within five business days?	388-320-100	Explains what happens if DSHS fails to timely respond to a public record request. A petition for review will not be reviewed by the "public records officer" instead it will be reviewed by the denying public disclosure coordinator or "a director approved designee."
388-01-110 When might DSHS need to extend the time to respond to a public record request?	388-320-100	Explains the circumstances when DSHS may need more time to respond to a public record request.
388-01-120 What if an individual thinks DSHS is unreasonably delaying the release of a public record?	388-320-100	Explains an individual's options if they feel DSHS is unreasonably delaying the release of a public record.
388-01-130 What if the public record that is requested contains exempt information?	388-320-133, 388-320-205, 388-320-225	Explains what DSHS does if a public record that is requested contains exempt information.
388-01-140 What are an individual's options if DSHS denies a public record request?	388-320-210	Explains an individual's options if DSHS denies a public record. A petition for review will not be reviewed by the "public records officer" instead it will be reviewed by the denying public disclosure coordinator or "a director approved designee."
388-01-150 If a public record contains person information that identifies an individual or organization, other than the subject of the record, is that individual or organization notified?	This section replaces DSHS Administrative Policy 6.14	Puts into rule that DSHS may notify an individual or organization if a requested public record contains personal information about them.
388-01-160 Can an individual's representative request their public record?	388-320-160	Reflects that a signed written release is needed for an individual's representative to receive that individual's public records. Reference to "legislators" being able to receive information without written release has been deleted.
388-01-170 Is DSHS required to create public records for requesters?		New rule explains that DSHS is only required to provide access to existing public record in its possession at the time of the request.
388-01-180 Can DSHS release public records to its offices and to outside agencies?	388-320-235, 388-320-240	Explains how and when DSHS can release public records to its offices and to outside agencies.
388-01-190 Who should be contacted to review an administrative or policy statement index, or to get a copy of the index?	388-320-450	Explains who should be contacted to review or get a copy of an administrative or policy statement index.
388-01-210 How can and [an] individual get an index of DSHS significant decisions?	388-320-460	Explains how someone can get an index of DSHS significant decisions.
388-01-220 How are petitions for declaratory orders filed?	388-320-375	This re-numbers and clarifies information on how someone can file a petition for declaratory order.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Edith Rice, Office of Legal Affairs, P.O. Box 45823, Olympia, WA 98504-5823, (360) 664-6051.

Name of Proponent: Department of Social and Health Services, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 388-01 WAC is written in clear rule writing style to comply with the criteria in the Governor's Executive Order 97-02. These rules clearly explain how individuals or organizations request public records from DSHS, and how DSHS responds to public record requests. DSHS anticipates that greater understanding of the public disclosure process will help the public and DSHS staff in requests and responses to public record requests.

Proposal Changes the Following Existing Rules: Repeal existing chapter 388-320 WAC, Public records disclosure--Administrative procedures and replace with new chapter 388-01 WAC, DSHS organization/disclosure of public records.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rules and concludes that no businesses are affected by these rules.

RCW 34.05.328 does not apply to this rule adoption. These rules do not meet the definition of a significant legislative rule.

Hearing Location: Lacey Government Center (behind Tokyo Bento Restaurant), 1009 College Street S.E., Room 104-B, Lacey, WA 98503, on June 22, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Paige Wall by June 11, 1999, phone (360) 902-7540, TTY (360) 902-8324, e-mail wallpg@dshs.wa.gov.

Submit Written Comments to: Identify WAC Numbers, Paige Wall, Rules Coordinator, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 902-8292, by June 22, 1999.

Date of Intended Adoption: July 1, 1999.

May 18, 1999

Marie Myerchin-Redifer, Manager

Rules and Policies Assistance Unit

The purposes of this chapter are to:

(1) Describe the organization of the department of social and health services (DSHS);

(2) Ensure that DSHS complies with laws governing the disclosure (release) of public records; and

(3) Explain how an individual or organization can obtain public records.

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(1) DSHS was created to unite related statewide social and health service programs within a single agency. DSHS programs are designed to protect the general public, as well as persons who are unable to fully care for themselves or meet their basic needs. It is organized into seven administrations plus the secretary’s and deputy secretary’s offices:

(a) Aging and adult services,

(b) Children's services,

(c) Economic services,

(d) Health and rehabilitative services,

(e) Juvenile rehabilitation,

(f) Management services, and

(g) Medical assistance.

(2) To request an organizational chart, contact: DSHS, Office of the Secretary, P.O. Box 45010, Olympia, WA 98504-5010, or telephone number (360) 902-7800.

(3) DSHS has offices in the community to serve clients. Local DSHS offices go by various names such as community services office (CSO), regional offices, home and community services (HCS), division of child support (DCS), children’s services, division of developmental disabilities (DDD) field service offices, and facilities.

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DSHS prepares and keeps public records that relate to the programs. Different types of public records include: Documents, audio or video recordings, pictures, electronic disks, and magnetic tapes.

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(1) Public records kept by DSHS are available for release unless the law specifically excludes (or exempts) them.

(2) For a list of public records that are excluded from public disclosure by law, see RCW 42.17.310 and other disclosure laws specific to DSHS programs.

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An individual should contact the public disclosure coordinators at DSHS offices to request a record. Public disclosure coordinators are located at local community service offices (CSO), regional offices, home and community services (HCS), division of child support (DCS), children’s services, DDD field services offices, DSHS facilities, and within each DSHS administration.

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(1) An individual can request a public record orally or in writing. DSHS encourages that all public record requests be in writing on a "request for disclosure of DSHS records" form, DSHS 17-041(X). Individuals may request this form from DSHS, Forms and Records Management Services, P.O. Box 45805, Olympia, WA 98504-5805, (360) 664-6120, or e-mail at DSHSFormsRecordsMgmt@dshs.wa.gov.

(2) If the form is not used, the written public record request should include the following information:

(a) The requester's name, organization, mailing address, telephone number, fax number, and e-mail address;

(b) The date of the request;

(c) A detailed description of the public record being requested;

(d) The DSHS office location at which the requester would like to examine the public record at, or if copies of the records should be mailed; and

(e) The signature of the requester.

(3) Individuals can fill out record requests at a DSHS office, or send it by regular mail, electronic mail, or fax to the public disclosure coordinator at the appropriate DSHS office.

(4) DSHS may ask an individual requesting a public record for personal identification.

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Individuals can examine public records during DSHS office hours. The office hours are 8:00 a.m. to noon and 1:00 p.m. to 5:00 p.m., Monday through Friday except for legal holidays. Contact the public disclosure coordinator in the appropriate office to arrange a time to examine the public record.

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(1) There is no fee for examining public records.

(2) DSHS charges one or more of the following fees for copies of public records:

(a) Fifteen cents per page for black and white photocopies of a record;

(b) The actual cost of manuals, blueprints, and other nonprinted materials such as audio or video tapes; and

(c) The cost of postage, when items are mailed (see RCW 42.17.260).

(3) Government agencies, or DSHS clients involved in an administrative hearing procedure, may receive public records free of charge.

(4) DSHS may waive copying and postage fees if:

(a) Providing a copy of the record assists in managing a program; or

(b) The expense of billing exceeds the copying and postage costs.

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Within five business days after receiving the public record request DSHS must review the public record, and:

(1) Provide the public record;

(2) Acknowledge receipt of the request, and give the DSHS date for response; or

(3) Deny the request in writing, noting the reason(s) for denial.

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If DSHS fails to respond to a public record request within five business days after receiving it, the person requesting the public record:

(1) Should consider the request denied; and

(2) May petition for review of the denied request from the office that issued the denial. Contact DSHS to obtain a petition form (DSHS 17-062(X)) at: DSHS Forms and Records Management Services, P.O. Box 45805, Olympia, WA 98504-5805, (360) 664-6120, or e-mail DSHSFormsRecordsMgmt@dshs.wa.gov. DSHS has two days after receiving the petition to respond. If DSHS upholds the denial, the decision is considered final.

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DSHS might need to extend the time to respond to a public record request to:

(1) Contact the individual requesting the public record to clarify the intent, scope or specifics of the request;

(2) Locate and gather the information requested;

(3) Notify an individual or organization affected by the request; and/or

(4) Determine whether the information requested is exempt and whether all or part of the public record requested can be released.

(5) If the individual requesting the public record fails to clarify the request, DSHS does not have to respond to the request.

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If an individual requesting a public record thinks DSHS is unreasonably delaying the release of a public record, the individual may:

(1) Petition the public disclosure coordinator to release the public record before the date indicated on DSHS response (see WAC 388-01-090).

(2) File a lawsuit in superior court to require DSHS to release the public record.

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If the requested public record contains exempt information, DSHS may:

(1) Release the nonexempt portion, explaining what exemption applies to the deleted portion of the record;

(2) Deny release of the entire record, sending a written explanation citing the exemption that applies to the denial; or

(3) Release information to law enforcement officers and United States immigration officials according to RCW 74.04.062.

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If DSHS denies a public record request, an individual may do any of the following:

(1) Petition for a review of the denied request from the denying public disclosure coordinator or a director approved designee (see WAC 388-01-100); or

(2) File a lawsuit for release of a public record in superior court in the county where the public record is located.

(a) DSHS must establish that its denial of a public record is legal.

(b) If the DSHS denial is reversed, the court may require DSHS to pay costs and attorney fees. DSHS may be fined five dollars to one hundred dollars a day for each day they denied the public record.

(3) Ask the office of the attorney general to review the public record request.

(a) Send a copy of the denied public record request and the DSHS written denial to:

Office of Attorney General

Public Records Review

P.O. Box 40100

Olympia WA 98504-0100

(b) The office of the attorney general will review the request and DSHS denial. The office of attorney general issues a written opinion as to whether the requested public record is excluded from disclosure.

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(1) If a public record contains personal information that identifies an individual or organization other than the subject of the requested public record, DSHS may notify that individual or organization.

(2) DSHS may send a written notice to the individual or organization if releasing the personal information could damage the individual or organization, government operations, or is not in the best interest of the public. The notice should include:

(a) The record being requested;

(b) The date DSHS intends to release the record; and

(c) How the individual or organization can prevent release of the record (see RCW 42.17.330).

(3) DSHS should also send a written notice to the record requestor notifying them that:

(a) The individual or organization whose personal information is contained in the requested public record has been notified;

(b) DSHS expects a response from the individual or organization regarding disclosure of their personal information by a specified date; and

(c) Disclosure may be denied.

(4) DSHS will release the record by the specified date if no one objects.

(5) DSHS must notify the office of the attorney general when an individual or organization, other than the subject of a record, files a lawsuit to prevent release of the record.

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(1) An individual's attorney, legal guardian, or lay representative can request an individual's public record with a signed written release.

(2) The written release must include:

(a) The identity of the individual(s) or organization(s) authorized to receive the records;

(b) An identification of the public record(s), or part of the public record, that the individual wants released; and

(c) The date the release expires.

(3) DSHS may ask for identification verifying the representatives’s relationship to the individual.

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(1) DSHS is only required to provide access to existing public records in its possession at the time of the request.

(2) DSHS is not required to collect information to create a public record that does not exist at the time of the public record request.

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(1) For the purposes of this chapter, outside agencies means, but are not limited to, group homes, mental health centers, drug and alcohol agencies, organizations, and other state agencies.

(2) DSHS may release public records to its offices and to outside agencies when the information relates to the administration of DSHS programs unless exempt by 45 C.F.R. 205.50 or other law.

(3) If an outside agency requests a public record for reasons other than information that relates to the administration of DSHS programs, the outside agency must have the individual's written authorization.

(4) Outside agencies receiving information are subject to DSHS disclosure laws.

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DSHS issues administrative policy statements that apply to the whole department. Administrations may issue policies and interpretive statements that relate to their own programs. See RCW 34.05.010.

(1) To receive a copy of a DSHS administrative policy, send a written request to: Office of Legal Affairs, Rules and Policies Assistance Unit, P.O. Box 45850, Olympia, Washington 98504-5850.

(2) To receive a copy or review a specific administration’s policies or interpretive statements send a written request to the administration.

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(1) The DSHS board of appeals reviews and selects orders then create an index of significant decisions that substantially affects DSHS performance (see RCW 42.17.260).

(2) The index should:

(a) Be divided into program categories;

(b) Contain a copy or synopsis of the order; and

(c) Be updated, as needed.

(3) An individual can inspect or request a copy of the index by contacting the board of appeals located at:

Board of Appeals

Blake Office Park

4500 - 10th Avenue Southeast

Lacey, WA 98503-5803

(360) 664-6100

Mailing address:

Board of Appeals

P.O. Box 45803

Olympia, WA 98503-5803

(4) An individual may ask the board of appeals to index an order as a significant decision by sending a written request with a copy of the order to the mailing address.

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(1) First, read the information on declaratory orders in RCW 34.05.240 and WAC 10-08-250, 10-08-251, and 10-08-252.

(2) Next, file the petition with the Rules and Policies Assistance Unit; DSHS; P.O. Box 45850; Olympia, WA 98504-5850.

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     The following sections of the Washington Administrative Code are repealed:

WAC 388-320-010	Purpose.
WAC 388-320-030	Establishment of department.
WAC 388-320-100	Public records available.
WAC 388-320-110	Public records officer.
WAC 388-320-115	Disclosure coordinator.
WAC 388-320-130	Request for disclosure of a public record.
WAC 388-320-132	Preserving requested records.
WAC 388-320-133	Approval or denial of request.
WAC 388-320-135	Disclosure to client's representative.
WAC 388-320-140	Fees--Inspection and copying.
WAC 388-320-170	Protection of public records.
WAC 388-320-205	Disclosure procedure.
WAC 388-320-210	Remedy for review of denial of disclosure.
WAC 388-320-220	Exemptions to public records disclosure.
WAC 388-320-225	Qualifications on nondisclosure.
WAC 388-320-235	Disclosure for program purposes.
WAC 388-320-240	Disclosure for other than program purposes.
WAC 388-320-375	How do I file petitions for declaratory orders?
WAC 388-320-450	Interpretive and policy statements roster and index.
WAC 388-320-460	Final adjudicative and declaratory order index.

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