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PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 08-07-094.
Title of Rule and Other Identifying Information: Chapter 468-06 WAC, Public access to information and records.
Hearing Location(s): Transportation Commission Board Room, Transportation Building, 310 Maple Park Avenue S.E., Olympia, WA 98501-3261, on July 28, 2008, at 1:30 p.m.
Date of Intended Adoption: July 28, 2008.
Submit Written Comments to: Cathy Downs, P.O. Box 47410, Olympia, WA 98504-7410, e-mail downsc@wsdot.wa.gov, fax (360) 705-6808, by July 28, 2008.
Assistance for Persons with Disabilities: Contact Washington state department of transportation by July 28, 2008, TTY (360) 705-7000 or (360) 705-7760.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Rewrite rule in plain talk and bring WAC into compliance with chapter 42.56 RCW.
Reasons Supporting Proposal: RCW was recodified from chapter 42.17 RCW to chapter 42.56 RCW and the WAC will be in compliance with new RCW.
Statutory Authority for Adoption: Chapters 42.17, 42.56 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state department of transportation records and information management office, governmental.
Name of Agency Personnel Responsible for Drafting: Grant Heap, 310 Maple Park Avenue, Olympia, WA 98501, (360) 705-7760; Implementation: Marta Carlo, 310 Maple Park Avenue, Olympia, WA 98501, (360) 705-7734; and Enforcement: Cathy Downs, 310 Maple Park Avenue, Olympia, WA 98501, (360) 705-7761.
No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule is regarding public information and should not impact any small businesses.
A cost-benefit analysis is not required under RCW 34.05.328. There is no financial impact due to the implication of this rule.
May 20, 2008
Steve T. Reinmuth
Chief of Staff
OTS-1647.1
AMENDATORY SECTION(Amending DOT Order 10 and Comm. Order 1,
Resolution No. 13, filed 12/20/78)
WAC 468-06-010
((Purpose.)) What is the purpose of this
chapter?
The purpose of this chapter ((shall be)) is to
((ensure compliance by the Washington state department of
transportation with the provisions of chapter 1, Laws of 1973
(Initiative 276), and in particular with sections 25 through
32 of that act, dealing with public records)):
(1) Publish department of transportation organizational information.
(2) Establish the procedures we will follow to provide access to public records prepared, owned, used, or held by the department.
[Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-010, filed 12/20/78. Formerly WAC 252-03-010.]
(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 or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents.
(3) "Department" means the Washington state department of transportation.)) Definitions used in the Public Records Act, chapter 42.56 RCW, apply to these rules.
[Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-020, filed 12/20/78. Formerly WAC 252-03-020.]
(1) Personal information in files maintained for employees, appointees or elected officials of any public agency to the extent that disclosure would violate their right to privacy.
(2) Specific intelligence information and specific investigative files compiled by investigative, law enforcement and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.
(3) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time the complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. However, all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath.
(4) Test questions, scoring keys, and other examination data used to administer a license, employment or academic examination.
(5) Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired, or the property to which the sale appraisal relates is sold, but in no event shall disclosure be denied for more than three years after the appraisal.
(6) Valuable formulae, designs, drawings and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.
(7) Preliminary drafts, notes, recommendations, and intraagency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.
(8) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.
(9) Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites.
(10) Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, which discloses or could be used to disclose the identity of a library user.
(11) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for (a) a ferry system construction or repair contract as required by RCW 47.60.680 through 47.60.750 or (b) highway construction or improvement as required by RCW 47.28.070.
(12) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.
(13) The residential addresses and residential telephone numbers of employees or volunteers of a public agency which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees or volunteers.
(14) Information that identifies a person who, while an agency employee:
(a) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in connection with a possible unfair practice under chapter 49.60 RCW against the person; and
(b) Requests his or her identity or any identifying information not be disclosed.
(15) Investigative records compiled by an employing agency conducting a current investigation of a possible unfair practice under chapter 49.60 RCW or of a possible violation of other federal, state, or local laws prohibiting discrimination in employment.
The exemptions of this section shall be inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interest, can be deleted from the specific records sought. No exemption shall be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.)) (1) The exemptions that will apply are those set out in chapter 42.56 RCW and any other applicable law.
(2) The department does not disclose lists of individuals requested for commercial purposes.
[Statutory Authority: Chapter 42.17 RCW and RCW 47.01.101. 96-16-004 (Order 163), § 468-06-030, filed 7/24/96, effective 8/24/96. Statutory Authority: RCW 42.17.250 through 42.17.340. 89-17-047 (Order 120), § 468-06-030, filed 8/14/89, effective 9/14/89; 85-23-040 (Order 97), § 468-06-030, filed 11/18/85. Statutory Authority: RCW 42.17.250 through 42.17.350. 81-11-035 (Order 62), § 468-06-030, filed 5/19/81. Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-030, filed 12/20/78. Formerly WAC 252-03-025.]
(2) The department of transportation is headed by a secretary who is the executive head of the department and is appointed by the Washington state transportation commission.
(a) Serving directly under the secretary are the chief of staff, audit office, equal opportunity office, engineering and regional operations division, Washington state ferries division and the finance and administration division. There are also assistant attorney generals assigned to the department who provide legal services in department matters.
(b) Reporting directly to the chief of staff are the following offices: Communications, governmental liaison office, ombudsman, freight strategy and policy, highways and local programs, public transportation and rail, aviation and transportation economic partnerships.
(c) The following programs report to the assistant secretary for engineering and regional operations, depending upon their needs. Environmental and engineering programs, urban corridors and northwest coordination, maintenance and operations programs and planning and capital program management.
(d) The department field functions are carried out by six regions which are each headed by a region administrator. The central regional office locations are: Seattle, Wenatchee, Tumwater, Vancouver, Yakima, and Spokane. The regions have various project and maintenance area offices which are headed by a supervisor. Region administrators report directly to the assistant secretary for the engineering and regional operations division.)) We have headquarters, division, and regional offices.
The department of transportation organization chart:
[Statutory Authority: RCW 47.01.031. 03-09-103, § 468-06-040, filed 4/22/03, effective 5/23/03; 02-10-021, § 468-06-040, filed 4/23/02, effective 5/24/02. Statutory Authority: RCW 47.01.101. 99-07-013, § 468-06-040, filed 3/8/99, effective 4/8/99. Statutory Authority: Chapter 42.17 RCW and RCW 47.01.101. 96-16-004 (Order 163), § 468-06-040, filed 7/24/96, effective 8/24/96. Statutory Authority: RCW 42.17.250 through 42.17.340. 89-17-047 (Order 120), § 468-06-040, filed 8/14/89, effective 9/14/89; 85-23-040 (Order 97), § 468-06-040, filed 11/18/85. Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-040, filed 12/20/78. Formerly WAC 252-03-030.]
(a) Ensuring employees comply with department processes and procedures and state laws about public disclosure;
(b) Managing headquarters, regional, and division public disclosure coordinators and delegating responsibilities to them;
(c) Approving and signing public record exemption letters; and
(d) Contacting the attorney general's office for legal opinions on public record exemptions, subpoenas, and other legal matters.
(2) You may contact the headquarters public records officer at:
Transportation Building
310 Maple Park Avenue S.E.
P.O. Box 47300
Olympia, WA 98504-7300
Telephone: 360-705-7000
TTY: 1-800-833-6388
www.wsdot.wa.gov
(3) In the absence of the public records officer, the
records manager performs the duties of the public records
officer.
(4) A public disclosure coordinator is available in each region or division. Region and division contact information is available at www.wsdot.wa.gov.
[Statutory Authority: RCW 42.17.250 through 42.17.340. 89-17-047 (Order 120), § 468-06-050, filed 8/14/89, effective 9/14/89. Statutory Authority: RCW 42.17.250 through 42.17.350. 81-11-035 (Order 62), § 468-06-050, filed 5/19/81. Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-050, filed 12/20/78. Formerly WAC 252-03-040.]
You may obtain a copy of the form by calling or contacting a public disclosure coordinator or at www.wsdot.wa.gov.
(2) If you do not use the department's form, requests should:
(a) Provide the name, address, telephone number, and e-mail address of the person requesting the record.
(b) Provide the date and time of the request.
(c) Provide a clear description of the record. You should be as specific as possible. Public disclosure coordinators may ask you to explain or clarify your request because it is not specific enough.
(d) Indicate in the request that this is a "request for public records."
[Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-060, filed 12/20/78. Formerly WAC 252-03-050.]
(1)(a) A public record may ordinarily be disclosed upon an oral or written request. Requests will be referred to the public records officer or public disclosure coordinator. All requests shall contain the following information:
(i) The name of the requester.
(ii) The date the request was made.
(iii) Public records or information requested.
(iv) Requester's signature (if written request).
(b) The person handling the oral request shall require the requester to submit a written request in the following instances:
(i) Whenever the record requested clearly falls within the statutory exemptions of WAC 468-06-030 or when the exempt status of the record is unclear.
(ii) Whenever an entire file is requested or all records of a general category are requested unless the number of documents involved is less than ten.
(iii) Records pertaining to condemnation actions or other pending litigation to which the department is a party or pertaining to any controversy to which the department is party.
(iv) When the document requested has a notation "legal work product" or "privileged attorney-client communication" or similar notice of privileged material.
(v) Where the oral request is too complicated or too extensive and inconvenient to the department to handle the matter on an oral basis.
(2) Responses to requests for public records shall be made promptly. Within five business days of receiving a public record request, the department will respond by either:
(a) Providing the record;
(b) Acknowledging that the department has received the request and providing a reasonable estimate of the time the department will require to respond to the request; or
(c) Denying the public record request.
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 offices 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. In acknowledging receipt of a public record request that is unclear, the department may ask the requester to clarify what information the requester is seeking. If the requester fails to clarify the request, the department need not respond to it.
(3) The public records officer or person handling the request shall inform the member of the public making the request whether or not the requested record is available for inspection or copying at a region office or at the transportation building in Olympia, Washington.
(4) The records requested are not to be used to compile a commercial sales list.
(5) When it appears that a request for a record is made by or on behalf of a party to a lawsuit or a controversy to which the department is also a party (or when such a request is made by or on behalf of an attorney for such a party) the request shall be referred to the assistant attorney general assigned to the department for appropriate response.)) (1) Nonexempt public records are generally available for inspection and copying during normal business hours. Normal business hours are Monday through Friday from 9:00 a.m. to noon and from 1:00 p.m. to 4:00 p.m., excluding legal holidays.
(2) You must make an appointment with the appropriate office before inspecting the records. Appointments are limited to two hours.
[Statutory Authority: Chapter 42.17 RCW and RCW 47.01.101. 96-16-004 (Order 163), § 468-06-070, filed 7/24/96, effective 8/24/96. Statutory Authority: RCW 42.17.250 through 42.17.340. 85-23-040 (Order 97), § 468-06-070, filed 11/18/85. Statutory Authority: RCW 42.17.250 through 42.17.350. 81-11-035 (Order 62), § 468-06-070, filed 5/19/81. Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-070, filed 12/20/78. Formerly WAC 252-03-060 and 252-03-990.]
(a) Acknowledge we have received the request and provide a reasonable estimate of the time it will take to respond and briefly explain the time estimate.
(i) Time estimates are based on many issues including the complexity of the request, clarity of the request, number of documents, location of documents, redaction, legal issues, court decision, third-party involvement, or determining if records are exempt. In any case, coordinators will provide you a brief written explanation for the time necessary to respond to your request.
(ii) We may extend reasonable estimates when warranted. A public disclosure coordinator will contact you if this happens.
(b) Provide the requestor the records.
(c) Ask for a better description of an unclear request.
(d) Provide part of the records and deny another part.
(e) Deny the request.
(2) We will take timely action on requests and make the records "promptly available."
[Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-080, filed 12/20/78. Formerly WAC 252-03-070.]
(2) The department of transportation shall impose a reasonable charge for providing copies of public records and for the use by any person of agency equipment to copy records; such charges shall not exceed the amount necessary to reimburse the department for its actual costs incident to such copying.)) The department will not charge you for any standard request of less than twenty-five copies. A standard request is a black and white copy on 8 1/2" x 11" plain white paper.
(2) You will be charged fifteen cents per page for all standard requests of twenty-five copies or more and the actual cost of all nonstandard requests. You may obtain a list of nonstandard costs from a public disclosure coordinator.
(3) A public disclosure coordinator will notify you by mail if there is a copying charge.
(4) The department will require full payment for all copying requests before providing the records.
[Statutory Authority: Chapter 42.17 RCW and RCW 47.01.101. 96-16-004 (Order 163), § 468-06-090, filed 7/24/96, effective 8/24/96. Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-090, filed 12/20/78. Formerly WAC 252-03-080.]
(1) Copying of public documents shall be done by department personnel and under the supervision of said personnel, upon the request of members of the public under the procedures set down in WAC 468-06-070.
(2) No document shall be physically removed by a member of the public from the area designated by the department for the public inspection of documents for any reason whatever.
(3) When a member of the public requests to examine an entire file or group of documents, as distinguished from a request to examine certain individual documents which can be identified and supplied by themselves, the department shall be allowed a reasonable time to inspect the file to determine whether information protected from disclosure by section 31, chapter 1, Laws of 1973, is contained therein, and the department shall not be deemed in violation of its obligation to reply promptly to requests for public documents by reason of causing such an inspection to be performed.)) (1) You should give a reasonable notice of your public records request to the public disclosure coordinator where the records are stored. Coordinators will assist you in the timeliest manner possible but are not required to excessively interfere with other essential functions.
(2) Coordinators will:
(a) Notify you in writing when public records are ready for inspection.
(b) Schedule an appointment for you to inspect the requested public records.
(i) Coordinators may ask you to complete the department's request for public records form before making an appointment.
(ii) A staff person will remain with all public records you are inspecting. Reviewing time is limited to two hours.
(iii) Coordinators will provide a space to inspect public records. You may not remove any public record from the viewing area or disassemble or alter any document.
(iv) If you fail to inspect the public records as scheduled or make a required payment we may close the request.
(c) Notify you in writing when the inspection is complete or your request has been withdrawn or abandoned. Coordinators may provide large volumes of public records in installments.
(3) The headquarters public disclosure coordinator, or delegee, will notify you in writing if the records you requested are exempt from public disclosure.
(4) Coordinators will provide you copies of any public documents after your inspection is complete. The department may charge you for copies but there is no charge for inspection of public records. See WAC 468-06-090.
[Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-100, filed 12/20/78. Formerly WAC 252-03-090.]
(2) If your request requires a partial exemption, the headquarters public disclosure coordinator, or delegee, will notify you in writing. The notification will list each exempt record, the law allowing the exemption, and a brief explanation of the exemption. Coordinators will redact or blackout the exempt information and provide you the nonexempt portion of the records.
[Statutory Authority: RCW 42.17.250 through 42.17.340. 85-23-040 (Order 97), § 468-06-110, filed 11/18/85. Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-110, filed 12/20/78. Formerly WAC 252-03-100.]
(2) After receiving a written request for review of a decision denying a public record, if the public records officer determines to affirm the denial, then the written request shall immediately be referred to the assistant attorney general assigned to the department. The assistant attorney general shall promptly consider the matter and either affirm or reverse such denial. In any case, the request shall be returned with a final decision, within two business days following the original denial.
(3) Administrative remedies shall not be considered exhausted until the public records officer has returned the petition with a decision or until the close of the second business day following denial of inspection, whichever first occurs.)) If you object to the complete or partial denial of a public records request you may make a written petition for review. Your petition should identify the written statement denying your request. Send your written petition to the public disclosure coordinator. Coordinators will promptly forward the petition to the headquarters public disclosure coordinator for review.
(2) The department's headquarters public disclosure coordinator will promptly:
(a) Review the petition.
(b) Consult with the office denying the record.
(c) Contact the attorney general's office for advice as appropriate.
(3) We will provide you a written decision within ten business days following the department's receipt of the petition. If the requestor and department agree, a longer period of review may be allowed.
(4) If you do not agree with the department's review, you may request a review of the department's claim of exemption by the attorney general's office. You can initiate this type of review by sending a written request for review to:
Public Records Review
Office of the Attorney General
P.O. Box 40100
Olympia, WA 98504-0100
publicrecords@atg.wa.gov
[Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-120, filed 12/20/78. Formerly WAC 252-03-110.]
(1) Include the name and location of the requestor and the record(s) requested.
(2) Advise the employee, person or business that they may seek a court injunction in superior court within ten days to prevent release of the record in accordance with RCW 42.56.540.
(3) Inform the employee, person or business that the department will disclose the record to the requestor unless the employee, person or business provides the coordinator with a court order enjoining such disclosure.
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(2) The department will make available for public disclosure all indices which may at a future time be developed for agency use.)) You request an electronic record the same way as a paper record. You should advise the coordinator in writing that you are seeking the record in an electronic form.
An electronic record is any record generated, communicated, received, or stored by electronic means for use in an informational system or for transmission from one information system to another.
(2) Your request for an electronic record must include an identifiable record. An identifiable record is one that a coordinator or another staff person can reasonably locate.
A reasonably locatable electronic record is a record that can be located with typical search features and organizing methods contained in the department's current software.
(3) The department may charge actual costs of providing electronic records in advance.
[Statutory Authority: RCW 42.17.250 through 42.17.350. 81-11-035 (Order 62), § 468-06-130, filed 5/19/81. Statutory Authority: 1977 ex.s. c 151. 79-01-033 (DOT Order 10 and Comm. Order 1, Resolution No. 13), § 468-06-130, filed 12/20/78. Formerly WAC 252-03-120.]
(2) If a public record (kept on paper) is reasonably translatable into an agency used electronic format, coordinators will provide you an electronic copy of that record.
A reasonably translatable record is one we can easily copy from paper to an electronic format.
(3) The department may charge actual costs of providing electronic records in advance.
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(a) Final orders entered after June 30, 1990, issued in adjudicative proceedings as defined in RCW 34.05.010(1) that contain an analysis or decision of substantial importance to the agency in carrying out its duties.
(b) Declaratory orders entered after June 30, 1990, that contain an analysis or decision of substantial importance to the agency in carrying out its duties.
(c) Interpretive statements as defined in RCW 34.05.010(8).
(d) Policy statements entered after June 30, 1990, as defined in RCW 34.05.010(14).
(2) A system of indexing shall be as follows:
(a) The indexing system will be administered by the department's rules coordinator and located in the transportation building in Olympia, Washington.
(b) Copies of all indexes shall be available for public inspection and copying in the manner provided for the inspection and copying of public records.
(c) The rules coordinator shall establish and maintain a separate index for each item contained in subsections (1)(a) through (d) of this section as follows:
(i) The index shall list all final orders and declaratory orders selected by the department that contain decisions of substantial importance to the agency which orders shall be listed alphabetically by the titles of the hearing or controversy and shall contain a phrase describing the issue or issues and relevant citations of law.
(ii) Interpretative statements and policy statements shall be indexed by the applicable program administered by the department.
(d) The rules coordinator shall update all indexes at least once a year and shall revise such indexes when deemed necessary by the department.)) The department's records indexes are located in the records and information services office, transportation building, Olympia, Washington.
(2) The records officer is responsible for:
(a) Managing the index system.
(b) Coordinating all aspects of the index.
(c) Revising indexes when necessary.
[Statutory Authority: Chapter 34.05 RCW. 90-23-007, § 468-06-140, filed 11/9/90, effective 12/10/90.]
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