Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-09-003.

     Title of Rule and Other Identifying Information: Public records disclosure.

     Hearing Location(s): Department of Licensing, Highways-Licenses Building, Room 108, 1125 Washington Street S.E., Olympia, WA 98504-8016, on July 25, 2006, at 10 a.m.

     Date of Intended Adoption: July 26, 2006.

     Submit Written Comments to: Walt Fahrer, 1125 Washington Street S.E., Olympia, WA 98504-8016, e-mail wfahrer@dol.wa.gov, fax (360) 753-7500, by July 24, 2006.

     Assistance for Persons with Disabilities: Contact Dale R. Brown by July 21, 2006, TTY (360) 664-8885.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of these rules is to establish the procedures the department of licensing will follow in order to provide full access to public records.

     Reasons Supporting Proposal: Model rules developed by the attorney general.

     Statutory Authority for Adoption: RCW 42.17.250, 42.17.260, 46.01.110.

     Statute Being Implemented: RCW 42.17.260.

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

     Name of Proponent: Department of licensing, governmental.

     Name of Agency Personnel Responsible for Drafting: Walt Fahrer, 1125 Washington Street S.E., Olympia, WA, (360) 902-3640; Implementation and Enforcement: Hannah Fultz, 1125 Washington Street S.E., Olympia, WA, (360) 902-3625.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not affect small business.

     A cost-benefit analysis is not required under RCW 34.05.328. The department of licensing is not one of the named agencies that must comply with this statute.

June 5, 2006

Walt Fahrer

Administrator

OTS-8953.1

AMENDATORY SECTION(Amending WSR 92-09-107, filed 4/20/92, effective 5/21/92)

WAC 308-10-005   Authority and purpose.   ((The purpose of this chapter shall be to ensure compliance by the department of licensing with the provisions of RCW 42.17.250-42.17.320, dealing with public records.)) (1) RCW 42.17.260(1)/42.56.070(1) requires each agency to make available for inspection and copying nonexempt "public records" in accordance with published rules. The act defines "public record" to include 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 the agency.

     (2) The purpose of these rules is to establish the procedures the department of licensing will follow in order to provide full access to public records. These rules provide information to persons wishing to request access to public records of the department of licensing and establish processes for both requestors and the department of licensing staff that are designed to best assist members of the public in obtaining such access.

     (3) The purpose of the act is to provide the public full access to information concerning the conduct of government, mindful of individuals' privacy rights and the desirability of the efficient administration of government. The act and these rules will be interpreted in favor of disclosure. In carrying out its responsibilities under the act, the department of licensing will be guided by the provisions of the act describing its purposes and interpretation.

[Statutory Authority: RCW 42.17.250. 92-09-107, § 308-10-005, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-005, filed 12/24/75.]

     (((2) The "department of licensing" is the agency created pursuant to chapter 46.01 RCW. The department of licensing shall hereinafter be referred to as the department. Where appropriate, the term department also refers to the staff and employees of the department of licensing.

     (3) "Director" means the director of the department of licensing as appointed by the governor pursuant to RCW 46.01.090.

     (4) "Raw data" means facts, symbols, or observations which have all of the following characteristics:

     (a) They have not been processed, edited or interpreted.

     (b) They are unevaluated and unorganized.

     (c) The fact, symbol, or observation does not, of itself, impart meaning to a potential user or fulfill a recognized need.

     (d) To be useable the fact, symbol, or observation must go through some transformation process.

     (5) "Information" means raw data that are organized, evaluated and interpreted to impart meaning to potential users and fulfill a recognized need.

     (6) "Listing (list)" means an item-by-item series of names, figures, words or numbers written or printed one after the other.

     (7) "Tabulation" means the systematic arrangement of facts, statistics, and similar information, except the names of individuals, in column or table format.

     (8) "Individual" means a natural person.

     (9) "Commercial purpose" means using or intending to use information for the purpose of facilitating a profit expecting business activity.

     (10) "Profession," when applied to department records, or the release of department record information, means any state regulated business, profession or occupation administered by the assistant director, business and professions division.)) (2) "Designee" is a department employee authorized by the public records officer to receive and respond to a public records request.

     (3) The "department of licensing" is the agency created pursuant to chapter 46.01 RCW. The department of licensing shall hereinafter be referred to as the department. Where appropriate, the term department also refers to the staff and employees of the department of licensing.

     (4) "Director" means the director of the department of licensing as appointed by the governor pursuant to RCW 46.01.090.

     (5) "Listing (list)" means an item-by-item series of names, figures, words or numbers written or printed one after the other.

     (6) "Individual" means a natural person.

     (7) "Commercial purpose" means using or intending to use information for the purpose of facilitating a profit expecting business activity.

     (8) "Profession" when applied to department records, or the release of department record information, means any state regulated business, profession or occupation administered by the assistant director, business and professions division.

[Statutory Authority: RCW 46.01.110. 99-17-031, § 308-10-010, filed 8/11/99, effective 9/11/99. Statutory Authority: RCW 42.17.250. 96-05-036, § 308-10-010, filed 2/15/96, effective 3/17/96; 92-09-107, § 308-10-010, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-010, filed 12/24/75.]

     (2) The director of the department is appointed by the governor, with consent of the senate, and holds office at the pleasure of the governor.

     (a) Subject to statutory limitations the director has complete charge of the department. The director may delegate any power or duty vested in the office to any assistant or subordinate, but remains responsible for the official acts of the officers and employees.

     (b) By the specific powers of legislation and delegation the director is charged with the responsibility and authority to act and direct in the following areas:

     (i) Efficiently administer the laws pertaining to licensing of vehicles, vehicle operators, professions, occupations, real estate, vessels, and businesses.

     (ii) Adopt and enforce rules consistent with, and necessary to carry out, the provisions of existing laws.

     (c) Each assistant director and officer reports directly to the deputy director, unless otherwise prescribed.

     (d) Unless specifically delegated the director shall establish and maintain relationships with the state's executive offices, legislature, and other state agencies, other states and other states' agencies, agencies of the federal government, state and national associations, local and municipal governments, boards and commissions, and the press.

     (e) The director shall have direct authority over matters pertaining to public information, research, and legal issues.

     (3) The assistant director, vehicle services, has authority to act in the following areas:

     (a) Administer laws pertaining to:

     (i) Vehicle and vessel licensing and excise tax programs;

     (ii) Fuel tax programs;

     (iii) Proration and reciprocity programs;

     (iv) Vehicle and vessel dealer, manufacturer licensing and inspection programs; and

     (v) Miscellaneous vehicle licensing programs including: Transporters, wreckers, hulk haulers, abandoned vehicles, tow truck operators, scrap processors, snowmobile and ORV vehicle dealers.

     (b) Adopt and enforce rules and standards to carry out the provisions of existing law.

     (c) Administer the licensing functions of county auditors, and licensing agents who have been appointed to act on behalf of the department.

     (4) The assistant director, driver services, has authority to act in the following areas:

     (a) Administer the laws pertaining to driver licensing, financial responsibility, driver improvement, and examining;

     (b) Adopt and enforce rules and standards to carry out the provisions of existing law; and

     (c) Determine field office locations and initiate property acquisition.

     (5) The assistant director, business and professions division, has authority to act in the following areas:

     (a) Administer the laws in conjunction with appointed boards pertaining to the following professions, occupations, and businesses:

     Appraisers

     Architects

     ((Athlete agents))

     Auctioneers

     Bail bonds ((agencies))

     ((Barbers)) Boxing

     Camping resorts

     Cemeteries

     Collection agencies

     Cosmetologists

     ((Debt adjusters

     Embalmers)) Court reporters

     Employment agencies

     Engineers

     ((Estheticians))

     Firearms ((dealers))

     Funeral directors

     Geologists

     Land surveyors

     Landscape architects

     ((Manicurists)) Limousines

     Martial arts

     Notaries public

     On-site wastewater treatment

     Real estate ((brokers and salespersons))

     Private investigators

     Security guards

     ((Court reporters)) Sellers of travel

     Timeshares

     Vehicle for hire (includes taxis)

     Wrestling

     Uniform commercial code (UCC)

     (i) The assistant director of the business and professions division helps administer the laws in conjunction with appointed boards, who exercise administrative and regulatory functions. Those boards are as follows:

     ((Appraiser advisory committee)) Real Estate Appraiser Commission

     Board of registration for architects ((registration board))

     Board of funeral directors and embalmers

     Cemetery licensing board

     Collection agency board

     Cosmetology, barbering, esthetics, and manicuring advisory ((committee)) board

     Professional engineers ((&)) and land surveyors ((registration)) board

     Landscape architect((s examining)) board

     Real estate commission

     ((Shorthand court reporters advisory committee)) On-site wastewater design advisory committee

     Geologist licensing board

     (ii) Correspondence to these boards should be directed to the program units for the boards.

     (b) Adopt and enforce the rules, regulations and standards in conjunction with appointed boards to carry out the provisions of existing laws.

     (c) Establish and maintain relationships with commissions, boards, societies, associations, and agencies both external and internal to this state in order to enhance the department's capability for recommending improvements in legislation, rules, or regulations relative to professions, occupations, or businesses.

     (d) Administer the laws pertaining to Uniform Commercial Code, business licensing and registration.

     (6) The ((assistant director, administrative services)) chief financial officer, finance and administration division, has authority to act in the following areas:

     (a) Develop, promote, and direct department activities and programs which relate to:

     (i) Budget and management systems;

     (ii) Supply and equipment procurement;

     (iii) ((Forms and)) Records management;

     (iv) Fiscal and revenue accounting;

     (v) Contracts;

     (vi) Safety and risk management;

     (vii) Facilities;

     (viii) Mail operations;

     (b) Organize, provide, and manage integrated staff services to best serve the overall interests of the department.

     (7) The ((assistant director)) chief information officer, information services, has the authority to act in the following areas:

     (a) Develop, promote, coordinate, and direct department activities which relate to the automated processing of data.

     (b) Consult and work with other state agencies in structuring and phase-in of inter-agency related programs.

     (c) Develop and implement a formal problem reporting system.

     (8) The department conducts informal and formal proceedings in areas of its statutory authority as related in WAC 308-10-020. These proceedings are governed by chapters 34.05, 42.30 and 43.24 RCW, except that the denial, suspension, or revocation of drivers' licenses are not subject to provisions of chapter 34.05 RCW, the Administrative Procedure Act, other than those actions taken pursuant to chapter 46.29 RCW. The department has adopted rules in Title 308 WAC.

[Statutory Authority: RCW 42.17.250. 96-05-036, § 308-10-020, filed 2/15/96, effective 3/17/96; 92-09-107, § 308-10-020, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-020, filed 12/24/75.]

[Statutory Authority: RCW 42.17.250. 96-05-036, § 308-10-025, filed 2/15/96, effective 3/17/96; 92-09-107, § 308-10-025, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-025, filed 12/24/75.]

[Statutory Authority: RCW 42.17.250. 96-05-036, § 308-10-030, filed 2/15/96, effective 3/17/96; 92-09-107, § 308-10-030, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-030, filed 12/24/75.]

     (1) A request shall be made in writing upon ((a)) the department's public records request form ((prescribed by the department which shall be available at its administrative office. The form shall be presented to any member of the department staff designated by the responsible assistant director to receive requests, at the administrative office of the department during customary office hours)) or by letter, fax, or e-mail addressed to the public records officer or designee where the record is held. The request shall include the following information:

     (a) The name and address of the person requesting the record.

     (b) The calendar date on which the request is made.

     (c) The nature of the request.

     (d) A reference to the requested record as it is described in the current department record index.

Note:

If the material is not identifiable by reference to the department's current index, an accurate description of the record is requested.

     (e) The signature and other ((identifying information of the requester)) contact information including telephone number and any e-mail address.

     (2) In all cases in which a member of the public is making a request, it shall be the obligation of the staff member to whom the request is made to assist the member of the public in appropriately identifying the public record requested.

     (3) Persons authorized by law to obtain lists of names of individuals from public records will be required to complete a statement agreeing not to release or use the information for commercial purposes.

     (4) If the requestor wishes to have copies of the records made instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records or a deposit. Pursuant to WAC 308-10-045, standard photocopies will be provided at fifteen cents per page.

     (5) The public records officer or designee may accept requests for public records that contain the above information by telephone or in person. If the public records officer or designee accepts such a request, he or she will confirm, in writing, receipt of the information and the substance of the request.

[Statutory Authority: RCW 42.17.250. 96-05-036, § 308-10-040, filed 2/15/96, effective 3/17/96; 92-09-107, § 308-10-040, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-040, filed 12/24/75.]

     (2) Acknowledging receipt of request. Within five business days of receipt of the request, the public records officer or designee will do one or more of the following:

     (a) Make the records available for inspection or copying;

     (b) If copies are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon, send the copies to the requestor;

     (c) Provide a reasonable estimate of when records will be available; or

     (d) If the request is unclear or does not sufficiently identify the requested records, request clarification from the requestor. Such clarification may be requested and provided by telephone. The public records officer or designee may revise the estimate of when records will be available; or

     (e) Deny the request.

     (3) Consequences of failure to respond. If the department does not respond in writing within five business days of receipt of the request for disclosure, the requestor should consider contacting the public records officer or designee to determine the reason for the failure to respond.

     (4) Protecting rights of others. In the event that the requested records contain information that may affect rights of others and may be exempt from disclosure, the public records officer may, prior to providing the records, give notice to such others whose rights may be affected by the disclosure. Such notice should be given so as to make it possible for those other persons to contact the requestor and ask him or her to revise the request, or, if necessary, seek an order from a court to prevent or limit the disclosure. The notice to the affected persons will include a copy of the request.

     (5) Inspection of records.

     (a) Consistent with other demands, the department shall promptly provide space to inspect public records. No member of the public may remove a document from the viewing area or disassemble or alter any document. The requestor shall indicate which documents he or she wishes the agency to copy.

     (b) The requestor must claim or review the assembled records within thirty days of the department's notification to him or her that the records are available for inspection or copying. The department will notify the requestor in writing of this requirement and inform the requestor that he or she should contact the department to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the thirty-day period or make other arrangements, the department may close the request and refile the assembled records. Other public records requests can be processed ahead of a subsequent request by the same person for the same or almost identical records, which can be processed as a new request.

     (6) Providing copies of records. After inspection is complete, the public records officer or designee shall make the requested copies or arrange for copying.

     (7) Providing records in installments. When the request is for a large number of records, the public records officer or designee will provide access for inspection and copying in installments, if he or she reasonably determines that it would be practical to provide the records in that way. If, within thirty days, the requestor fails to inspect the entire set or records or one or more of the installments, the public records officer or designee may stop searching for the remaining records and close the request.

     (8) Completion of inspection. When the inspection of the requested records is complete and all requested copies are provided, the public records officer or designee will indicate that the department has completed a diligent search for the requested records and made any located nonexempt records available for inspection.

     (9) Closing withdrawn or abandoned request. When the requestor either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay the deposit or final payment for the requested copies, the public records officer or designee will close the request and indicate to the requestor that the department has closed the request.

     (10) Later discovered documents. If, after the department has informed the requestor that it has provided all available records, the department becomes aware of additional responsive documents existing at the time of the request, it will promptly inform the requestor of the additional documents and provide them on an expedited basis.

[]

ITEM	FEE
Copies produced on copying and duplicating equipment	15 cents per page
Computer generated listing, magnetic tapes or labels	Cost of services
Microfilm copies	75 cents per page
Postal charges	May be added to any copy of a public record if applicable

     (2) Before beginning to make the copies, the public records officer or designee may require a deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor. The public records officer or designee may also require the payment of the remainder of the copying costs before providing all the records, or the payment of the costs of copying an installment before providing that installment. The department will not charge sales tax when it makes copies of public records.

     (3) Payment may be made by check or money order to the department.

[Statutory Authority: RCW 46.01.110 and 42.17.260. 99-09-045, § 308-10-045, filed 4/19/99, effective 5/20/99. Statutory Authority: RCW 42.17.250. 96-05-036, § 308-10-045, filed 2/15/96, effective 3/17/96; 92-09-107, § 308-10-045, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-045, filed 12/24/75.]

     (2) Under RCW 42.17.260/42.56.210, the department may delete identifying details when it makes available or publishes any public record, in any cases when there is reason to believe that disclosure of such details would be an invasion of personal privacy protected by chapter 42.17/42.56 RCW.

     (3) The department will not release personal information, as defined in 18 USC 2725(3), from records pertaining to motor vehicle operator's licenses and permits, motor vehicle titles, motor vehicle registrations, and identification cards, unless the release both is considered a permissible use under 18 USC 2721 and is otherwise permitted by state law. In construing 18 USC 2721 (b)(2), the release of personal information for use in connection with matters of motor vehicle safety or driver safety shall be deemed to include the physical safety of persons as drivers, passengers or pedestrians and their motor vehicles or property.

     (4) All denials of requests for public records will be accompanied by a written statement specifying the reason for the deletion or denial, including a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld.

     (5) The department is prohibited by statute from disclosing lists of individuals for commercial purposes.

[Statutory Authority: RCW 46.01.110. 97-17-009, § 308-10-050, filed 8/7/97, effective 9/13/97. Statutory Authority: RCW 42.17.250. 92-09-107, § 308-10-050, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-050, filed 12/24/75.]

     (2) Administrative remedies shall not be considered exhausted until the department has returned the review of a denial with a decision or until the close of the second business day following denial of inspection, whichever occurs first.)) Petition for internal administrative review of denial of access. Any person who objects to the initial denial or partial denial of a records request may petition in writing (including e-mail) to the public records officer for a review of that decision. The petition shall include a copy of or reasonably identify the written statement by the public records officer or designee denying the request.

     (2) Consideration of petition for review. The public records officer shall promptly provide the petition and any other relevant information to the manager of administration, finance and administration division. That person will immediately consider the petition and either affirm or reverse the denial within two business days following the department's receipt of the petition, or within such other time as the department and the requestor mutually agree to.

     (3) Review by the attorney general's office. Pursuant to RCW 42.17.325/42.56.530, if the department denies a requestor access to public records because it claims the record is exempt in whole or in part from disclosure, the requestor may request the attorney general's office to review the matter. The attorney general has adopted rules on such requests in WAC 44-06-160.

     (4) Judicial review. Any person may obtain court review of denials of public records requests pursuant to RCW 42.17.340/42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.

[Statutory Authority: RCW 42.17.250. 92-09-107, § 308-10-055, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-055, filed 12/24/75.]

     (a) All records issued before July 1, 1990, for which the ((agency)) department has maintained an index.

     (b) Final orders from adjudicative proceedings as defined in RCW 34.05.010(1) entered after June 30, 1990, that contain an analysis or decision of substantial importance to the ((agency)) department in carrying out its duties.

     (c) Declaratory orders entered after June 30, 1990, that contain an analysis or decision of substantial importance to the ((agency)) department in carrying out its duties.

     (d) Interpretive statements entered after June 30, 1990.

     (e) Policy statements entered after June 30, 1990.

     (2) The department ((of licensing)) shall maintain a general index of all its records available to the public for inspection and copying, including those records mentioned above.

     (3) The general index of public records will be maintained and updated ((yearly)) by the ((agency)) department. The index of records is available during regular business hours for public inspection at the ((agency's)) department's main office located at the Department of Licensing, 1125 Washington Street S.E., Olympia, Washington 98504. The public ((disclosure)) records officer is responsible for updating the general index ((yearly)).

[Statutory Authority: RCW 42.17.250. 96-05-036, § 308-10-067, filed 2/15/96, effective 3/17/96. Statutory Authority: RCW 42.17.260(4). 91-13-057, § 308-10-067, filed 6/17/91, effective 7/18/91.]

[Statutory Authority: RCW 42.17.250. 92-09-107, § 308-10-070, filed 4/20/92, effective 5/21/92; Order MV 348, § 308-10-070, filed 12/24/75.]

     The following section of the Washington Administrative Code is repealed:

WAC 308-10-035

Office hours.

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