WSR 07-12-082



[ Filed June 5, 2007, 2:51 p.m. ]

Continuance of WSR 07-09-074.

Preproposal statement of inquiry was filed as WSR 06-13-025.

Title of Rule and Other Identifying Information: Model rules for providing electronic records under the Public Records Act, and housecleaning of WAC 44-14-04004 (4)(b)(i) and (ii).

Date of Intended Adoption: June 15, 2007.

Submit Written Comments to: Greg Overstreet, P.O. Box 40100, Olympia, WA 98504-0100, e-mail, fax (360) 664-0228, by June 11, 2007.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: BACKGROUND: RCW 42.56.570(2), amended in 2005, requires the office of the attorney general to adopt by rule an advisory model rule for state and local agencies, as defined in RCW 42.17.020, addressing the following subjects:

(a) Providing fullest assistance to requestors;

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

(c) Fulfilling requests for electronic records; and

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

On January 31, 2006, the attorney general adopted such an advisory model rule. Chapter 44-14 WAC; WSR 06-04-079. However, as we explained, because of the controversy over the proposed rules relating to electronic rules, those provisions were not included in the final rule. Instead, we commenced a new rule-making proceeding seeking further comments on a rule relating to electronic records, WSR 06-04-078 (January 31, 2006). The attorney general's office renoticed this preproposal statement of inquiry, WSR 06-13-025 (June 13, 2006).

In response to these notices, the attorney general received over two hundred pages of written comments and held several meetings with interested parties. We now publish this notice of proposed rule making pursuant to RCW 34.05.320 (CR-102) and propose this draft for comment.

SCOPE AND INTENT OF PROPOSED RULE: As stated in the preproposal statement of inquiry filed to commence the proceeding that led to the adoption of the initial set of model rules in January 2006, these rules "will collect and describe best practices on public records processing to aid requestors and agencies" WSR 05-16-120.

The application of the 1972 Public Records Act to 2007 technology is difficult. Though the act recognizes that electronically stored records fall within the scope of the act (see RCW 42.17.020(41)), the technological advances since 1972 certainly have surpassed anything envisioned by the drafters. Except for some modest recognition of the need for agencies to provide records online (see RCW 43.105.250), the legislature has not provided much clarification on how to apply the act to some electronic records issues.

Nevertheless, the legislature has tasked the attorney general with providing guidance on the topic of requests for electronic records to the state and local agencies. Because some of the statutory ambiguities have not been resolved, locating and describing a precise legal line between what the act requires state and local agencies to provide and what the act does not require is difficult. This proposed model rule relating to electronic records need not, and does not, attempt to define that line with precision. Rather, this proposed model rule is intended to provide state and local agencies with a standard of practice that would fulfill the agencies' obligations to adopt "reasonable rules and regulations" that would both implement the policies of the Public Records Act and "provide for the fullest assistance to inquirers and the most timely possible action on requests for information." RCW 42.56.100. In our view, agencies that provide such "fullest assistance" in conformance with this model rule will comply with both the letter and the spirit of the Public Records Act.

This model rule also does not purport to provide detailed guidance to state or local agencies on the possible interplay between access to electronic records under the Public Records Act and access to such records under the civil rules for superior court. The federal rules of civil procedure were recently amended to provide guidance to parties in litigation on their respective obligations to provide access to, or produce, "electronically stored information." The obligations under those federal rules (and under any state-imposed rules or procedures that adopt the federal rules) may be different than those required under the Public Records Act. It may be desirable, in the future, to revisit some aspects of this model rule to accommodate lessons learned from implementation of the federal rules. Though this model rule does not address all litigation-related issues, it does provide, in a comment section, caution to agencies to take care that, if they anticipate that records are being requested in anticipation of litigation, accurate copies are made so there can be no question later of what was and what was not produced in response to the request in the event that electronic records, or records derived from them, become issues in court.

ANTICIPATED EFFECT: The anticipated effect of the model rules for electronic records is to streamline compliance, standardize best practices throughout the state, and reduce litigation.

Reasons Supporting Proposal: The legislature directed the attorney general to adopt the Public Records Act model rules on a number of topics, including special issues involving requests for and disclosure of electronic records.

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

Name of Proponent: , governmental.

June 5, 2007

Rob McKenna

Washington State Code Reviser's Office