WSR 12-02-081

PROPOSED RULES

DEPARTMENT OF

EARLY LEARNING

[ Filed January 4, 2012, 11:12 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 09-18-055.

Title of Rule and Other Identifying Information: Public disclosure of department of early learning (DEL) records. Adopting a new chapter of TITLE 170 WAC.

Hearing Location(s): DEL, Tumwater Office, Nisqually Room, 6860 Capitol Boulevard S.E., Building 2, Tumwater, WA 98501, on Tuesday, February 7, 2012, at 6:00 p.m.; and at the Northeast Washington Educational Services District 101, 4202 South Regal, Spokane, WA 99223, on Saturday, February 11, 2012, at 11:00 a.m.

Individuals may arrive after the posted start time and still participate in these hearing[s]. However, the presiding officer may close the hearing if there are no public participants in attendance, or after all persons who indicated they wish to testify have done so. The public is encouraged to give input in writing.

The deadline for sending written comments on the proposed rules is midnight on Monday, February 13, 2012. See the "Submit Written Comments to" section of this notice about how to submit written input on this proposal.

DEL encourages the public to use of the department Facebook and DEL blog pages on the internet to post input about DEL programs and initiatives. However, for a written comment to be considered part of the official record for this proposal, the comment must be received at the on-line, e-mail, fax or postal mail locations as described in this notice under "Submit Written Comments to."

Everyone who comments on the proposed rules either in writing as provided in this notice or at a public hearing will receive the department's combined written response, called a concise explanatory statement. This statement is also available to anyone who requests it, by writing to the DEL Rules Coordinator, P.O. Box 40970, Olympia, WA 98504-0970 or by e-mailing Rules@del.wa.gov.

Date of Intended Adoption: Not earlier than February 14, 2012.

Submit Written Comments to: DEL, Rules Coordinator, P.O. Box 40970, Olympia, WA 98504-0970, on-line at https://apps.del.wa.gov/PolicyProposalComment/Detail.aspx, e-mail Rules@del.wa.gov, fax (360) 413-3482, by February 13, 2012.

Assistance for Persons with Disabilities: Contact DEL rules coordinator by February 2, 2012, (360) 725-4424.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To adopt new public disclosure rules and related rules as they pertain to DEL, describe DEL's organization (as required by RCW 42.56.040) and help give the public information about requesting DEL records.

Reasons Supporting Proposal: These proposed rules simplify and give clarity to the public disclosure process.

Statutory Authority for Adoption: RCW 42.56.040, 43.215.070, and chapter 43.215 RCW.

Statute Being Implemented: RCW 42.56.040.

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

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: DEL records disclosure impacts the entire agency. Currently, DEL uses the attorney general's model rules as guidance. However, as mentioned in this WAC, the model rules were created as guidance and because state agencies vary in size, resources and the complexity of the requests they receive, a "one-size-fits-all" approach may not be suitable to the respectable agencies. What is laid out in the model rules might very well work for one agency, but not for DEL. These rules give DEL the opportunity to make an easier, more streamlined process for requesters.

Name of Proponent: DEL, governmental.

Name of Agency Personnel Responsible for Drafting: C. Brandon Chapman, Communications, DEL State Office, P.O. Box 40970, Olympia, WA 98504, (360) 725-4385; Implementation: Public Records Officer, DEL State Office, P.O. Box 40970, Olympia, WA 98504; and Enforcement: Communications Manager, DEL State Office, P.O. Box 40970, Olympia, WA 98504.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules are not expected to impose new costs on businesses that choose to request records from DEL. If the rules result in costs, those costs are not expected to be "more than minor" as defined in chapter 19.85 RCW.

A cost-benefit analysis is not required under RCW 34.05.328. DEL is not among the agencies listed as required to comply with RCW 34.05.328.

January 4, 2012

Elizabeth M. Hyde

Director

OTS-3205.1

Chapter 170-01 WAC

DISCLOSURE OF PUBLIC RECORDS


NEW SECTION
WAC 170-01-0010   Purpose.   The purpose of this chapter is to provide rules for the department of early learning to implement the Public Records Act, chapter 42.56 RCW.

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NEW SECTION
WAC 170-01-0020   Definitions.   The definitions set forth in chapter 42.56 RCW shall apply to this chapter. Additional definitions not listed in the Public Records Act are listed in this section, except as provided in this section.

"DEL" or "department" means the department of early learning. Where appropriate, DEL also may refer to the officials and employees of the department of early learning.

"Disclosure" means inspection and/or copying of public records, unless the record is exempt from disclosure by law.

"Public records" includes anything prepared, owned, used or retained by the agency and can include agency publications, on-line information posted on internet sites owned or controlled by the agency, child care career and wage ladder information, ECEAP records, subsidy information, grants, requests for proposals and contract information, documents contained in licensing files, interagency communication including service level agreements and memorandums of understanding, e-mails, letters, memos, licensing complaint reports in CAMIS/FAMLINK, service episode records, records held by contractors if they related to agency's function or action, certain electronic records, and other records not readily available to the public such as old manuals or training materials. These records can be written, recorded or electronic.

To be a public record, a document must relate to the "conduct of government or the performance of any governmental or proprietary function." RCW 42.17.020(41). Almost all records held by an agency relate to the conduct of government; however, some do not. A purely personal record having no relation to the conduct of government is not a "public record." While the contents of the personal record might not be a public record, a transaction of the record itself may be.

"Public records officer" means the designated person for the department who oversees all records requests. This person is identified in the Washington state register.

"Redact" means to edit from a released record information that is exempt from disclosure to the public, by covering over the information with black ink or other method without deleting the information from the original record.

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NEW SECTION
WAC 170-01-0030   Description of the department of early learning.   (1) DEL was formed in July 2006 under chapter 265, Laws of 2006 to bring together child care and early learning programs previously under the departments of social and health services and commerce, as well as the state office of public instruction.

(2) The department was established to oversee child care licensing and early childhood learning programs and initiatives.

(3) The administrative office of the department of early learning is located in Lacey, Washington. To request any information, contact: P.O. Box 40970, Olympia, WA 98504-0970, or call toll free 1-866-482-4325.

(4) Field offices exist in Aberdeen, Bellevue, Bellingham, Bremerton, Everett, Kennewick, Kelso, Kent, Mount Vernon, Othello, Port Angeles, Seattle, Spokane, Tacoma, Tumwater, Vancouver, Wenatchee, and Yakima.

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NEW SECTION
WAC 170-01-0040   Public records officer.   DEL's director will appoint a public records officer (PRO) whose responsibility is to serve as a "point of contact" for members of the public seeking public records. DEL will provide the public records officer's name and contact information by publishing it in the state register. DEL will also provide the public records officer's contact information on the department web site.

A request may be fulfilled by the PRO, or other DEL staff designated by the PRO.

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NEW SECTION
WAC 170-01-0050   Records index.   (1) The department keeps an index (list) of the following documents:

(a) Rules adopted by DEL under chapter 34.05 RCW.

(b) Substantive final orders issued by the department in adjudicative proceedings under chapter 34.05 RCW and chapter 170-03 WAC.

(c) Interpretive and policy statements filed by the department under chapter 34.05 RCW.

(2) The department finds that it would be unduly burdensome and would interfere with agency operations to maintain an index of other records because of the complexity and diversity of its operations and the resulting volume of manuals, correspondence, electronic data and constituent records.

(3) The department will make available for public disclosure all indices if at a future time they are developed for agency use.

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NEW SECTION
WAC 170-01-0100   Availability of public records.   Public records are available for inspection and copying during DEL's normal business hours, Monday through Friday, 8 a.m. to 5 p.m., excluding legal holidays. A department staff person must be present at all times when a record is being inspected. Appointments are not required but significantly help DEL provide prompt and efficient service. Some DEL records may be stored in other locations, in computer storage systems, or the state records warehouse, and may take time for DEL to identify and gather them. Other records may be exempt from disclosure. Original records cannot be removed from a DEL building. If required by law, DEL must redact information in a record before making it available for inspection. DEL staff will make copies of records on request.

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NEW SECTION
WAC 170-01-0110   Organization of records.   DEL will maintain its records in an organized manner and will take reasonable actions to protect records from damage and disorganization. Records available on the DEL web site at www.del.wa.gov are available to the public without a records request, and the department does not copy those records. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

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NEW SECTION
WAC 170-01-0120   How to make a public records request.   (1) Public records requests should be made directly to the DEL public records officer.

(2) Public records requests may be made verbally or in writing.

(a) Written requests may be sent by e-mail to public.records@del.wa.gov, by fax to 360-413-3482 or mail. Requests may be delivered to: Department of Early Learning, 649 Woodland Square Loop S.E., Lacey, WA 98503.

(b) DEL's public records request form is on its web site.

(c) A written request without using the DEL public records request form should contain:

(i) Name of requestor;

(ii) Address of requestor;

(iii) Other contact information, including telephone number and any e-mail address;

(iv) The date on which the request was made;

(v) A sufficient description of the record requested; and

(vi) If the information being requested may include a list of individuals or businesses, a statement that the list will not be used for commercial purposes, which is prohibited by law.

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NEW SECTION
WAC 170-01-0200   How DEL responds to your public records request.   Within five business days after receiving the request, DEL will either:

(1) Provide the record(s);

(2) Acknowledge the request and give a reasonable time estimate of how long the department will take to provide records;

(3) Contact the requestor to clarify the request if it isn't understood by the public records officer; or

(4) Deny all or part of the request in writing, with reasons for the denial. The explanation will include the law that DEL relied upon in its denial.

At his or her discretion, the public records officer may send the request records by e-mail, fax, postal mail, or commercial delivery. The records may be delivered on paper, computer or compact discs, or other methods.

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NEW SECTION
WAC 170-01-0210   What DEL considers a reasonable time estimate.   DEL will roughly calculate the time it will take to fill the request. There is no standard amount of time for fulfilling a request, so reasonable estimates may vary. The estimates are based upon:

(1) The size of the record requested. A large request generally will take more time than a small request.

(2) The location or locations where requested records may be. Records may be stored at different DEL offices, or at state records storage facilities.

(3) The case load of the person filling the request. While providing public records is an essential function of the agency, it is not required to abandon its other, nonpublic records functions.

Example: A child care licensor who fills the request must work the public records request around their other duties monitoring and licensing facilities.

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NEW SECTION
WAC 170-01-0220   Reasons for DEL extending the time needed to fill a public records request.   DEL may need to extend the time needed to fill a public records request beyond the five days in order to:

(1) Locate and gather the information requested;

(2) Notify an individual or organization affected by the request, and to give them an opportunity to object if allowed by law;

(3) Determine whether: The information requested is exempt from disclosure; all or part of the request can be released; portions of the record must be redacted; or

(4) Wait for response after DEL has already contacted the requestor to clarify the intent, scope or specifics of the request. For example, if a request is objectively unclear, DEL will attempt to clarify. If the requestor fails to clarify the request within thirty days of the agency's request, the agency may consider the request abandoned. If the agency considers the request abandoned, it will send a closing letter to the requestor.

DEL will notify the requestor in writing if an extension is needed.

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NEW SECTION
WAC 170-01-0230   Reasons for DEL denying disclosure of all or part of a record.   RCW 42.56.030 states that the Public Records Act "shall be liberally construed and its exemptions narrowly construed." DEL will provide all records required by law. However, there are times when all or part of a record request would be denied, such as when:

(1) The record is exempt from disclosure by law.

(2) The request is for lists of individuals for commercial purposes, including family home providers.

(3) The requestor has not asked for an identifiable record. The Public Records Act requires access to existing, identifiable public records in an agency's possession at the time of the request.

(4) The request requires DEL to collect or organize data to create a public record, or to give data that did not exist at the time of the public records request.

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NEW SECTION
WAC 170-01-0240   Types of records that may be exempt from disclosure.   With any public records request, disclosure must occur unless a specific exemption exists in statute that would allow for DEL to not disclose the record or the information within a record.

DEL is always prohibited by statute from disclosing lists of individuals, including family home providers, for commercial purposes.

The Public Records Act lists exemptions or allows for "other statute" exemptions. Requestors should be aware of the following exemptions, outside the Public Records Act, that restrict the availability of some documents held by DEL, for inspection and copying: For example, RCW 5.60.060(2) restricts privileged attorney-client communications between DEL staff and the office of the attorney general.

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NEW SECTION
WAC 170-01-0250   If the public record requested is exempt from disclosure.   If DEL determines that a record is exempt from disclosure, you will be informed in writing of the specific exemption authorizing DEL to withhold the record.

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NEW SECTION
WAC 170-01-0260   If only part of the record requested is exempt from disclosure.   DEL may redact (see WAC 170-01-0020) identifying details or other information when the information is not subject to disclosure. The requestor will be informed in writing of the exemptions authorizing DEL to withhold information within a record.

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NEW SECTION
WAC 170-01-0270   DEL reviews of records request denials.   If DEL denies all or part of a request, or redacts any portion of a record, the requestor may request a review of this decision by:

(1) Asking the public records officer for an internal DEL review.

(2) Asking for an external review by the attorney general's office.

Requestors may initiate this by sending a request for review to Public Records Review, Office of the Attorney General, P.O. Box 40100, Olympia, WA 98504-0100 or publicrecords@atg.wa.gov.

(3) Asking for a judicial review.

All review requests must be in writing (letter, fax or e-mail). All review requests must specify the part or parts of the denial or redaction that the requestor wishes to be reviewed.

After receiving a request for an internal review, the public records officer will refer the matter for review to the agency communications manager who may consult with other agency leaders. The denial will either be upheld or reversed within two business days after the receipt of the review request.

To initiate a court review of a public records case, a requestor can file a "motion to show cause" which directs the agency to appear before the court and show any cause why the agency did not violate the act. The case must be filed in the superior court in the county in which the record is maintained.

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NEW SECTION
WAC 170-01-0300   Fees for inspecting or copying records.   (1) Costs for paper copies. There is no cost to inspect records. Copying or duplicating fees are intended to equal DEL's costs, including costs of materials, machinery, and personnel. The fees charged may be reviewed periodically to assure their accuracy (RCW 42.56.120). Alternatively, if DEL has not determined the actual per page cost for photocopies of public records, it may charge up to fifteen cents for a standard black-and-white photocopy. The public records officer can share current fee rates.

(2) Costs for electronic records. The cost of electronic copies of records shall be determined by how the electronic records are delivered. DEL will charge no more than fair-market value for information that must be delivered on a CD-ROM, DVD or other tool. DEL may charge (put value) for a paper record to be scanned. There will be no charge for e-mailing electronic records, unless another cost applies, such as scanning.

(3) Costs of mailing. DEL may also charge actual costs of mailing or shipping a record, including the cost of the shipping container.

(4) Payment. Before beginning to make copies, the public records officer may require a deposit of up to ten percent of the estimated cost of copying all the records selected by the requestor. The public records officer may also require payment for the remainder of the copying costs before providing all the records. DEL will not charge sales tax when it makes copies of public records.

If all or part of a requested record is not paid for, or the requested record is not claimed within thirty calendar days, the department may consider the request as terminated. If terminated, the requestor must make a new records request to obtain the record.

Payment should be sent to the DEL Financial Services Office (P.O. Box 40970, Olympia, WA 98504-0970). Payment may be made by cash, check, or money order to the department of early learning. It should clearly be marked as payment for public records.

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Washington State Code Reviser's Office