Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-15-103.

     Title of Rule and Other Identifying Information: Chapter 434-12A WAC, Office of the secretary of state public records and rules of procedure.

     Hearing Location(s): Office of the Secretary of State, Conference Room, 416 Sid Snyder Way, Olympia, WA 98504, on October 21, 2008, at 10:00 a.m.

     Date of Intended Adoption: December 3, 2008.

     Submit Written Comments to: Megan Moreno, P.O. Box 40220, Olympia, WA 98504-0220, e-mail mmoreno@secstate.wa.gov, fax (360) 586-5629, by October 24, 2008.

     Assistance for Persons with Disabilities: Contact Megan Moreno by October 20, 2008, TTY (360) 422-8683.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Amended rules will update and revise provisions related to requests for public records and provide an updated explanation of the organizational structure of the office.

     Reasons Supporting Proposal: Rules contained in this chapter have not been updated since 1974. Rule making is also necessary in order to revise provisions related to requests for public records in order to reflect model rules on the subject developed by the attorney general pursuant to RCW 42.56.570. Provisions related to the organizational structure of the office of the secretary of state require updating.

     Statutory Authority for Adoption: RCW 42.56.040.

     Statute Being Implemented: Chapter 434-12A WAC.

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

     Name of Proponent: Office of the secretary of state, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Brenda Galarza, P.O. Box 40224, Olympia, WA 98504, (360) 586-4556.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no fiscal impact associated with the changes proposed to chapter 434-12A WAC.

     A cost-benefit analysis is not required under RCW 34.05.328. There is no fiscal impact associated with the changes proposed to chapter 434-12A WAC.

September 8, 2008

Steve Excell

Assistant Secretary of State

OTS-1854.1

AMENDATORY SECTION(Amending Order 74-2, filed 2/19/74)

WAC 434-12A-010   Authority and purpose.   ((The purpose of this chapter shall be to provide an official public record of the information required by RCW 42.17.250 to be adopted by the office of the secretary of state.)) (1) RCW 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. RCW 42.56.070(2) requires each agency to set forth "for informational purposes" every law, in addition to the Public Records Act, that exempts or prohibits the disclosure of public records held by that agency.

     (2) The purpose of these rules is to establish the procedures the office of the secretary of state 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 office of the secretary of state and establish processes for both requestors and secretary of state 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 office of the secretary of state will be guided by the provisions of the act describing its purposes and interpretation.

[Order 74-2, § 434-12A-010, filed 2/19/74.]

     (2))) general duties are set forth in chapter 43.07 RCW, and relate generally to elections, the formation and maintenance of business organizations, charitable solicitations, charitable trusts, registration of domestic partnerships, archives and records management, the state library, and the address confidentiality program. Additional functions include regulating the use of the state seal, filing or attesting to official acts of the legislature or governor, certifying to the legislature all matters legally required to be certified, issues apostilles, and other actions required or authorized by law. In addition to these constitutional and statutory duties, the secretary of state is frequently called upon to represent the state of Washington in international trade and cultural missions, and to greet and confer with dignitaries and delegations visiting the state of Washington from other countries.

     (2) The functions of the secretary of state are performed through the following divisions and programs:

     (a) The elections division, through which the secretary acts as the state's chief election officer;

     (b) The corporations division, through which the secretary accepts filings as provided by law related to profit and nonprofit corporations and other forms of business organization, accepts registrations pursuant to the Charitable Solicitations Act and the Charitable Trust Act, accepts filings and issues licenses related to digital signatures, accepts registrations of domestic partnerships, and issues apostilles;

     (c) The archives and records management division, through which the secretary provides services as required by law related to archives and records management;

     (d) The Washington state library, providing library services to the public and state government and related services;

     (e) The special programs division, which includes:

     (i) The productivity board, which the secretary chairs and whose staff provides organizational support and which provides awards and incentives related to state employee brainstorm and teamwork incentive programs;

     (ii) The address confidentiality program, for victims of domestic violence, sexual assault and stalking; and

     (iii) The legacy project, which conducts, publishes and preserves oral histories of significant figures in Washington history.

     (3) The offices of the secretary of state and their staff are located at:

     (a) Main Administrative Office, Legislative Building, 416 Sid Snyder Way, P.O. Box 40220, Olympia, WA 98504-0220.

     (b) ((Corporations Division, Legislative Building, Olympia.

     (c) Uniform Commercial Code Section, Insurance Building, Olympia.

     (d) Elections Division, Insurance Building, Olympia.

     (3) The organizational chart, attached hereto as Appendix A, illustrates the general structure and organization of the staff of the secretary of state.)) Elections Division, 520 Union Ave. S.E., P.O. Box 40229, Olympia, WA 98504-0229;

     (c) Corporations Division, 801 Capitol Way South, P.O. Box 40234, Olympia, WA 98504-0234;

     (d) Archives and Records Management Division, 1129 Washington Street S.E., P.O. Box 40238, Olympia, WA 98504-0238. The archives and records management division also includes:

     (i) The state records center, located at 7590 New Market Street S.W., Tumwater, WA, mailing address: P.O. Box 40239, Olympia, WA 98504-0239;

     (ii) Regional archive facilities:

     (A) Olympia Regional Branch, located at 1129 Washington Street S.E., P.O. Box 40238, Olympia, WA 98504-0238;

     (B) Puget Sound Regional Branch, located at 3000 Landerholm Circle S.E., MS-N100, Bellevue, WA 98007-6484;

     (C) Northwest Regional Branch, located at Western Washington University, MS-9123, Bellingham, WA 98225-9123;

     (D) Central Branch, located at 400 E. University Way, Mail Stop 7547, Ellensburg, WA 98926-7547; and

     (iii) The Washington State Digital Archives, and Eastern Washington Regional Branch, located at 960 Washington Street, Cheney, WA 99004;

     (e) The Washington State Library, Point Plaza East, 6880 Capitol Blvd. South, Tumwater, P.O. Box 42460, Olympia, WA 98504-2460;

     (f) The Productivity Board and Legacy Project, 6880 Capitol Blvd. South, Tumwater, P.O. Box 40224, Olympia, WA 98504-0224; and

     (g) The Address Confidentiality Program, Legislative Building, P.O. Box 40220, Olympia, WA 98504-0220.

     (4) Any person wishing to request access to public records of the office of the secretary of state, or seeking assistance in making such a request, should contact the public records officer by mail at P.O. Box 40224, Olympia, WA 98504-0224, or by fax at 360-586-4311, or by e-mail at Publicrecords@secstate.wa.gov. Information is also available at the secretary of state's web site, at www.secstate.wa.gov.

     (5) The public records officer will oversee compliance with the act but another secretary of state staff member may process the request. Therefore, these rules will refer to the public records officer "or designee." The public records officer or designee and the office of the secretary of state will provide the fullest assistance to the requestor; create and maintain for use by the public and the office of the secretary of state an index to public records of the office by making available those records retention schedules applicable to the office of the secretary of state; and prevent fulfilling public records requests from causing excessive interference with essential functions of the office.

[Order 74-2, § 434-12A-030, filed 2/19/74.]

     (c) 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 receipt of the information and the substance of the request in writing. The office will presume that the request is fully and accurately described in this confirmation unless the requestor promptly indicates otherwise in writing.

[Order 74-2, § 434-12A-040, filed 2/19/74.]

     (2) Acknowledging receipt of request. Within five business days of receipt of the request, the public records officer 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 office of the secretary of state 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 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) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the office of the secretary of state believes that a record is exempt from disclosure and should be withheld, the public records officer will state the specific exemption and provide a brief explanation of why the record or a portion of the record is being withheld. If only a portion of a record is exempt from disclosure, but the remainder is not exempt, the public records officer will redact the exempt portions, provide the nonexempt portions, and indicate to the requestor why portions of the record are being redacted.

     (6) Inspection of records.

     (a) Consistent with other demands, the office of the secretary of state 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 office's notification to him or her that the records are available for inspection or copying. The agency will notify the requestor in writing of this requirement and inform the requestor that he or she should contact the agency 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 office of the secretary of state 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.

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

     (8) 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 of 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.

     (9) 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 office of the secretary of state has completed a diligent search for the requested records and made any located nonexempt records available for inspection.

     (10) 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 will close the request and indicate to the requestor that the office of the secretary of state has closed the request.

     (11) Later discovered documents. If, after the office of the secretary of state has informed the requestor that it has provided all available records, the office 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.

[]

     (2) Providing electronic records. When a requestor requests records in an electronic format, the public records officer will provide the nonexempt records or portions of such records that are reasonably locatable in an electronic format that is used by the agency and is generally commercially available, or in a format that is reasonably translatable from the format in which the agency keeps the record. Costs for providing electronic records are governed by WAC 434-12A-100.

     (3) Customized access to data bases. With the consent of the requestor, the agency may provide customized access under RCW 43.105.280 if the record is not reasonably locatable or not reasonably translatable into the format requested. The office of the secretary of state may charge a fee consistent with RCW 43.105.280 for such customized access.

[]

     (2) Where an individual requests a copy, or a certified copy, of a document or instrument ((which is not a public record, as that term is defined by RCW 42.17.020(24) and WAC 434-12-020(1) [434-12A-020(1)], the office of the secretary of state shall charge a fee of:

     (a) Fifty cents per page for the first ten pages and twenty-five cents per page thereafter for providing copies of corporation records;

     (b) Five dollars per document for certified copies of profit corporation records;

     (c) Two dollars plus fifty cents per page for certified copies of nonprofit corporation records;

     (d) Four dollars for copies of statements listed to an individual debtor from Uniform Commercial Code records;

     (e) Fifty cents per page for the first ten pages, and twenty-five cents per page for each additional page for a copy of any law, resolution, record or other document filed in the office of the secretary of state)) for which the cost of copies is not governed by chapter 42.56 RCW, the office of the secretary of state may charge fees specified pursuant to other law, including other chapters of this title.

     (3) Where an individual requests a copy of a document or record for which ((is a public record, as that term is defined by RCW 42.17.020(24) and WAC 434-12-020(1) [434-12A-020(1)], and which has been filed with the office of the secretary of state pursuant to a specific statutory requirement to file such documents, the office of the secretary of state shall charge fifty cents per page for the first ten pages and twenty-five cents per page for each additional page of such document or record.

     (4) Where an individual requests a copy of a document or record which is a public record, as that term is defined by RCW 42.17.020(24) and WAC 434-12-020(1) [434-12A-020(1)] but which has not been filed with the office of the secretary of state pursuant to a specific statutory requirement to file such documents, the office of the secretary of state shall charge a fee of ten cents per page for each page of such document or record. This charge is intended to reimburse the office of the secretary of state for a portion of the actual costs of copying, but not to exceed such actual costs.

     (5) Where an individual requests to personally make a copy of a document or record referred to in subsection (3) or (4) of this section and the public records officer determines that this would not result in excessive interference with other essential functions of the agency, the charge shall be equal to the amount necessary to reimburse the office of the secretary of state for its actual costs incidental to such copying as determined by the public records officer of that section or division)) fees are established pursuant to chapter 42.56 RCW, a requestor may obtain standard black and white photocopies for fifteen cents per page. Copies in color or larger-sized documents will be based on the actual cost to reproduce them at the time of the request.

     The Washington state archives research fees covered by WAC 434-690-080 are determined by archives according to its terms. The corporations fees are per WAC 434-112-085.

     (4) 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 office of the secretary of state will not charge sales tax when it makes copies of public records.

     (5) Costs for electronic records. The cost of electronic copies of records shall be five dollars for information on a CD-ROM or DVD. There will be no charge for e-mailing electronic records to a requestor, unless another cost applies such as a scanning fee.

     (6) Costs of mailing. The office of the secretary of state may also charge actual costs of mailing, including the cost of the shipping container.

     (7) Payment. Payment may be made by cash, check, or money order to the office of the secretary of state, or by those credit or debit cards accepted by the office.

[Order 74-2, § 434-12A-100, filed 2/19/74.]

     The foregoing list is for informational purposes only and failure to list an exemption shall not affect the efficacy of any exemption. The secretary of state reserves the right to determine that a public record ((requested in accordance with the procedures outlined in WAC 434-12-090 [434-12A-090])) is exempt under the provisions of ((RCW 42.17.310)) state law.

     (2) ((In addition, pursuant to RCW 42.17.260 the secretary of state reserves the right to delete identifying details when he makes available or publishes any public record, in any cases where there is reason to believe that disclosure of such details would be an invasion of personal privacy protected by chapter 42.17 RCW.

     (3) All denials of requests for public records will be accompanied by a written statement specifying the reason for the 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.)) The office of the secretary of state is prohibited by statute from disclosing lists of individuals for commercial purposes.

[Order 74-2, § 434-12A-110, filed 2/19/74.]

     (3) Administrative remedies shall not be considered exhausted until the secretary of state or his designee has returned the petition with a decision or until the close of the second business day following denial of inspection, whichever first occurs.)) (1) 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 assistant secretary of state or the deputy secretary of state. That person will immediately consider the petition and either affirm or reverse the denial within two business days following the office's receipt of the petition, or within such other time as the office of the secretary of state and the requestor mutually agree to.

     (3) Review by the attorney general's office. Pursuant to RCW 42.56.530, if the office of the secretary of state 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 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.

[Order 74-2, § 434-12A-120, filed 2/19/74.]

     (1) Lists of active corporations;

     (2) The provisions of Title 23 RCW;

     (3) The provisions of Title 23A RCW;

     (4) The provisions of Title 24 RCW;

     (5) The provisions of chapter 25.10 RCW;

     (6) The provisions of Title 29 RCW;

     (((6) The provisions of Title 62A RCW;))

     (7) The provisions of chapter 18.100 RCW;

     (8) The provisions of chapter 19.77 RCW;

     (9) The provisions of chapter 43.07 RCW;

     (10) The provisions of the Washington state constitution;

     (11) The provisions of ((initiative measure 276 and rules and regulations adopted by the public disclosure commission)) chapters 40.14, 40.16, and 40.20 RCW, and any statutes, rules, schedules, indexes, guides, descriptions, or other materials related to the public records of state or local government or to the state archives; and

     (12) Rules and ((regulations)) informational publications related to the statutory provisions set forth above.

     Upon request, any person may receive a list of such printed matter currently available, the cost of each such item of printed matter, and instructions for ordering one or more items. The revenue derived in this manner shall be placed in the secretary of state's revolving fund.

[Order 74-2, § 434-12A-150, filed 2/19/74.]

     The following sections of the Washington Administrative Code are repealed:

WAC 434-12A-020	Definitions.
WAC 434-12A-050	Office hours.
WAC 434-12A-060	Public records officer.
WAC 434-12A-070	Protection of public records.
WAC 434-12A-080	Records index.
WAC 434-12A-090	Requests for public records.
WAC 434-12A-130	Adoption of standard request form.
WAC 434-12A-140	Communications and submissions relating to public records.
WAC 434-12A-990	Appendix A -- Form -- Organization chart.
WAC 434-12A-99001	Appendix B -- Form -- Request for public record.

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