WSR 05-13-059

PERMANENT RULES

SECRETARY OF STATE


(Address Confidentiality Program)

[ Filed June 9, 2005, 3:54 p.m. , effective July 10, 2005 ]


Purpose: To comply with the federal Help America Vote Act; to correct references to Title 29A RCW; to clarify, streamline and simplify agency procedures.

Citation of Existing Rules Affected by this Order: Amending WAC 434-840-005, 434-840-020, 434-840-030, 434-840-040, 434-840-070, 434-840-080, 434-840-110, 434-840-310, 434-840-320, and 434-840-330.

Statutory Authority for Adoption: RCW 40.24.090.

Adopted under notice filed as WSR 05-02-001 on December 22, 2004.

A final cost-benefit analysis is available by contacting Melissa Deinlein, P.O. Box 257, Olympia, 98507, phone (360) 753-2972, fax (360) 586-4388, e-mail mdeinlein@secstate.wa.gov.

Number of Sections Adopted in Order to Comply with Federal Statute: New 4, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 9, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: April 1, 2005.

Melissa Deinlein

Program Manager

OTS-7598.2


AMENDATORY SECTION(Amending WSR 04-15-089, filed 7/16/04, effective 8/16/04)

WAC 434-840-005   Definitions.   For the purposes of this chapter:

(1) "Address confidentiality program (ACP)" means the agency employee designated by the secretary of state with responsibility for developing and administering the program that implements the provisions of chapter 40.24 RCW.

(2) "Agency" means an office, department, division, bureau, board, commission, or other statutory unit of state or local government or any functional subdivision of that agency.

(3) "Application assistant" means an employee of a state or local agency, or of a nonprofit program that provides advocacy, counseling, referral, or shelter services to victims of sexual assault ((or)), domestic violence, or stalking who has been designated by the respective agency, and has been accepted ((and registered)) by the secretary of state to assist individuals ((in)) with threat assessment, safety planning, determining whether the program's services can help keep the victim safe, and the completion and submission of ((program participation)) the ACP application((s)).

(4) "Authorization card form" means the incomplete form for an authorization card on which no identifying program participant information has been entered.

(5) "Authorized personnel" means an employee of a county auditor's office, a county recording office, the Washington state department of health, or the office of the secretary of state who has been designated by the chief executive officer of the respective agency, to process and have access to voter application, voting records, marriage applications and records pertaining to program participants.

(6) "Bona fide statutory or administrative requirement" means that without possession of an individual's actual residential address the agency is ((unable to fulfill)) incapable of fulfilling its statutory duties and obligations.

(7) "Protected records voter" means a program participant who has applied and qualified as a service voter, as provided under RCW 29A.04.163, with ongoing absentee ballot voter status, as provided under RCW ((29A.40.040)) 29A.40.140.

(8) "Record" means any information relating to the conduct or performance of a governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

(9) "Substitute mailing address" means the mailing address designated by the secretary of state which shall not be the program participant's residential address as documented on her or his application for program participation.

(10) "Residential address" means the physical location where the participant resides for which the participant is requesting confidentiality.

[Statutory Authority: RCW 29A.04.610. 04-15-089, 434-840-005, filed 7/16/04, effective 8/16/04. Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-005, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-005, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-020   Exercise of program participant's privileges.   (1) At the time any state or local government agency creates a new record or updates an existing record, a program participant may request that the agency use the substitute mailing address as the participant's residence, work and/or school address.

(2) A program participant shall show her or his authorization card to the agency official creating a new record and request address confidentiality through the use of the substitute mailing address as it appears on the authorization card, in lieu of her or his actual location.

(3) The agency official creating a new record may make a file photocopy of the authorization card and shall immediately return the authorization card to the program participant. The agency official may call the program to verify an individual's current participation status in the program.

(4) An agency shall accept the substitute mailing address unless the agency has received a written exemption from the secretary of state pursuant to RCW 40.24.050 and WAC 434-840-070.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-020, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-020, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-030   Certification renewal.   (1) A program participant may renew her or his program certification by filing with the address confidentiality program: (a) Her or his current authorization card; (b) a properly completed ((certification)) renewal application form; and (c) a new authorization card form. The program participant shall provide all the information required on the ((certification)) renewal application form and date and sign the form.

(2) The address confidentiality program shall: (a) Certify a program participant, who has filed a properly completed ((certification)) renewal application form, to participate in the program for an additional four year term unless the certification is withdrawn or invalidated before that date; (b) issue to the program participant a new authorization card which includes the program participant's name, authorization code, substitute mailing address, certification expiration date, and signature((; (c) if the participant is a protected records voter, notify in writing the authorized personnel of the appropriate county auditor's office; and (d) if the participant has a protected marriage license, notify in writing the authorized personnel of the department of health and the appropriate county auditor's office)).

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-030, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-030, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-040   Certification withdrawal, invalidation, expiration, and termination.   (1) A program participant may withdraw from program participation by submitting to the address confidentiality program: Written notification of withdrawal and her or his current authorization card. Certification shall be terminated on the date of receipt of this notification. If the program participant requests cancellation but does not return her or his current authorization card and/or does not submit written notification of the request, the secretary of state may, at his/her discretion, cancel program participation based solely on the verbal request.

(2) The address confidentiality program shall terminate a program participant's certification and invalidate her or his authorization card if: (a) The program participant's certification term has expired and certification renewal has not been completed; (b) the address confidentiality program has determined that false information was used in the application process; or (c) the program participant ((obtains a legal name change)) fails to respond to the program's request for verification of the participant's residential address.

(3) The address confidentiality program may terminate a program participant's certification and invalidate her or his authorization card if: (a) The program participant no longer resides at the residential address ((listed)) on ((the application)) file, and has not provided ((seven)) at least two days' prior notice in writing of a change of address; ((or)) (b) first class mail, certified mail, or a service of process document forwarded to the program participant by the address confidentiality program is returned as nondeliverable, refused, or unclaimed; or (c) the program participant obtains a legal change of identity.

(4) ((If termination is a result of subsection (2) or (3) of this section,)) The address confidentiality program shall send written notification of the termination to the participant's last known mailing or residential address. The program participant shall have five business days in which to appeal the termination under procedures developed by the secretary of state.

(5) The address confidentiality program shall notify the appropriate authorized personnel when a participant has been terminated from the program. The authorized personnel shall transmit to the address confidentiality program all appropriate administrative records pertaining to the participant. The transmitting agency is no longer responsible for maintaining record confidentiality for a terminated program participant under chapter 40.24 RCW.

(((a) If the terminated participant had a protected marriage record, the address confidentiality program shall notify in writing authorized personnel of the department of health and the appropriate county auditor's office of the participant's termination.

(b) If the terminated participant was a protected records voter, the address confidentiality program shall notify in writing authorized personnel of the county auditor's office of the participant's termination.))

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-040, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-040, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-070   Agency exemption request.   (1) An agency requesting an exemption under RCW 40.24.050, must provide in writing to the secretary of state: (a) Identification of the statute or administrative rule which demonstrates the agency's bona fide requirement and authority for the use of the actual address of an individual; (b) identification and description of the specific record or record series for which the exemption is requested; (c) identification of the individuals who will have access to the record; (d) explanation of how the agency's acceptance of a substitute address will prevent the agency from meeting its obligations under the statute or rule identified above; and (e)(i) explanation of why the agency cannot meet its statutory or administrative obligations by a change in its internal procedures; and, where appropriate, (ii) description of any agency procedural change(s) that could be made that would allow it to accept the substitute address and meet its statutory or administrative obligations and an estimate of implementation time needed.

(2) The secretary of state shall file and review an agency's request for an exemption.

(3) During the review, evaluation and appeal of an agency's exemption request, the agency shall accept the use of a program participant's substitute address.

(4) The secretary of state's determination to grant or withhold a requested exemption shall be based on, but not limited to, an evaluation of the information provided under subsection (1) of this section in conformance with the statutory standard of a bona fide statutory or administrative requirement for the use of a program participant's actual address.

(5) If the secretary of state determines that an agency has a bona fide statutory or administrative requirement for the use of a program participant's actual address information and that the actual address information will be used only for those statutory and administrative purposes, the secretary may issue a written exemption for the agency. When granting an exemption, the secretary may include: (a) An agency's obligation to maintain the confidentiality of a program participant's address information; (b) limitations on use and access to that address information; (c) term during which the exemption is authorized for the agency; (d) designation of the record format on which the address information may be maintained; (e) designation of an address information disposition date after which the agency may no longer maintain a record of the address information; and (f) any other provisions and qualifications determined appropriate by the secretary of state.

(6) When a program participant requests use of the substitute address in a record, and the agency has received an exemption for that record, the agency shall immediately provide a copy of the written exemption to the requesting program participant. The agency shall notify the address confidentiality program of the occurrence and denial of the program participant's request.

(7) The secretary of state's denial of an agency exemption request shall be made in writing and include a statement of the specific reasons ((therefor)) therefore.

(8) An agency may appeal the denial of its request by resubmitting its written request together with additional data, information, and an explanation of corrective action taken to alleviate concerns and considerations included in the secretary of state's denial determination.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-070, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-070, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-080   Service of process.   (1) The secretary of state shall be an agent of the program participant upon whom any summons, writ, notice, demand, or process may be served.

(2) Service on the secretary of state of any such summons, writ, demand, notice, or process shall be made by mailing to the substitute address or by delivering to the secretary of state at his/her office in ((the Legislative Building,)) Olympia, WA: (a) Two copies of the summons, writ, notice, demand, or process; and (b) twenty-five dollars service-of-process fee for each action or document filed.

(3) If a summons, writ, notice, demand, or process is served on the secretary of state, the secretary of state shall immediately forward a copy to the program participant at the participant's current mailing address shown on the records.

(4) The secretary of state shall maintain in the program participant's file, a record of all summonses, writs, notices, demands, and processes served upon the secretary of state for that participant under RCW 40.24.030 (1)(b), which shall include the date of such service and the secretary of state's action.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-080, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-080, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-110   Proof of program participant's authority.   (1) When a program participant requests name and address confidentiality for marriage or voting records, authorized personnel shall check the authorization card to confirm that the term of program participation has not expired and that the program participant's signature on the authorization card matches that on the acknowledgement form.

(2) Authorized personnel may make a photocopy of the program participant's authorization card. The authorization card shall be immediately returned to the program participant. The photocopy shall be kept with the confidential marriage or voting records for this program participant during the time the records are filed and maintained by the county auditor or county recording officer. The authorized personnel may call the program to verify an individual's current participation status in the program.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-110, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-110, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-310   Protected records voter application.   (1) A program participant shall notify the appropriate county authorized personnel of her or his request for confidentiality in voting records by appearing in person before the appropriate county authorized personnel. The program participant shall: (a) Present her or his program authorization card; (b) cancel any previously existing voter registration; and (c) apply to vote by providing all the information required on the address confidentiality program ongoing absentee ballot application.

(2) The program participant shall disclose to the authorized personnel the actual address of her or his residence only for the purpose of determining proper precinct and district designations.

(3) An application for protected records voter status and an absentee ballot to be issued to the participant in person, may be made no later than the day before an election. An application for protected records voter status and an absentee ballot to be mailed to the substitute mailing address shall be made no later than twenty working days before the first election in which the program participant wishes to vote.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-310, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-310, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-320   Maintaining protected records voter information.   All records pertaining to a protected records voter shall be maintained in a manner ensuring that these records are accessible only to authorized personnel. ((A protected records voter shall not be included in any registered voter list, absentee ballot list, tape, label, or poll book. Information pertaining to)) Location information (including, but not limited to, residential address, county, precinct, taxing district, legislative or congressional district) for a protected records voter shall not be ((publicly accessible regardless)) maintained on any voter registration data base and shall not be publicly accessible regardless of the type of records management system except as provided by RCW 40.24.060.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-320, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-320, filed 9/26/91, effective 10/27/91.]


AMENDATORY SECTION(Amending WSR 98-19-063, filed 9/16/98, effective 10/17/98)

WAC 434-840-330   Mailing protected records voter ballots.   At least twenty days before every special, primary, or general election, authorized personnel shall review all protected records voter files and forward the appropriate ongoing absentee ballot for each protected records voter via the substitute mailing address.

The county authorized personnel shall maintain a record of ballots sent to protected records voters and a record of ballots returned. This record shall be maintained in accordance with WAC 434-840-320.

[Statutory Authority: RCW 40.24.090. 98-19-063, 434-840-330, filed 9/16/98, effective 10/17/98. Statutory Authority: 1991 c 23. 91-20-074, 434-840-330, filed 9/26/91, effective 10/27/91.]

Washington State Code Reviser's Office