WSR 12-04-087

PROPOSED RULES

MILITARY DEPARTMENT


[ Filed January 31, 2012, 3:08 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 11-22-017.

     Title of Rule and Other Identifying Information: Chapter 323-10 WAC, Public records.

     Hearing Location(s): 5720 Capitol Boulevard, Department of Transportation Building 7, Board Room, Olympia, WA 98504-7440, on March 16, 2012, at 10:00 a.m.

     Date of Intended Adoption: March 31, 2012.

     Submit Written Comments to: Jill Bushnell, Washington Military Department, Building 1, Camp Murray, Washington 98430, e-mail jill.bushnell@mil.wa.gov, fax (253) 512-8110, by March 16, 2012.

     Assistance for Persons with Disabilities: Contact Sharmin Hawley by March 9, 2012, (253) 512-8272.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to update the procedures the military department will follow in order to provide full access to public records. These proposed rules improve clarity and make it easier for requesters to understand military department procedures regarding access to public records.

     Reasons Supporting Proposal: The existing rules, last modified in 1973, do not reflect changes in statutes and military department processes.

     Statutory Authority for Adoption: RCW 42.56.040.

     Statute Being Implemented: Chapter 42.56 RCW.

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

     Name of Proponent: Military department, governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Jill Bushnell, Building 1, Camp Murray, Washington 98430, (253) 512-8110; and Enforcement: Nancy Bickford, Building 1, Camp Murray, Washington 98430, (253) 512-7712.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule imposes no costs on businesses.

     A cost-benefit analysis is not required under RCW 34.05.328. This proposal is not a significant legislative rule for the purposes of RCW 34.05.328.

January 31, 2012

Jill Bushnell

Public Records Officer

OTS-4594.1


AMENDATORY SECTION(Amending § 323-10-010, filed 2/13/74)

WAC 323-10-010   Authority and purpose.   ((The purpose of this chapter shall be to ensure compliance by the military department, state of Washington with the provisions of chapter 1, Laws of 1973 (Initiative 276), Disclosure -- Campaign finances -- Lobbying -- Records; and in particular with sections 25-32 of that act, dealing with public records.)) (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 military department 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 military department and establish processes for both requestors and military department 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. In carrying out its responsibilities under the act, the military department will be guided by the provisions of the act describing its purposes and interpretation.

[§ 323-10-010, filed 2/13/74.]


AMENDATORY SECTION(Amending § 323-10-020, filed 2/13/74)

WAC 323-10-020   ((Definitions.)) Agency description -- Contact information -- Public records officer.   (((1) Public records

     "Public record" includes 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 any state or local agency regardless of physical form or characteristics.

     (2) Writing

     "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds; or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums and other documents.

     (3) Military department

     The military department is the agency established by law pursuant to the provisions of Title 38 RCW. The military department shall hereinafter be referred to as the "agency." Where appropriate, the term "agency" also refers to the staff and employees of the military department.)) (1) The military department is the agency established by law pursuant to the provisions of Title 38 RCW. The headquarters building of the military department and its staff are located at: 1 Militia Drive, Building 1, Camp Murray, Washington, 98430.

     (2) Any person wishing to request access to public records of the military department, or seeking assistance in making such a request should contact the public records officer of the military department:


     Public Records Officer

     Washington Military Department

     Building 1

     Camp Murray, WA 98430

     Phone: 253-512-8110

     E-mail: public.records@mil.wa.gov


     Information and public records are also available at the military department web site at http://www.mil.wa.gov. Requestors are encouraged to view the information and documents available on the web site prior to contacting the records officer.

     (3) The public records officer will oversee compliance with the act but another military department 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 military department will provide the fullest assistance to requestors, create and maintain for use by the public and military department officials an index to public records of the military department, protect public records from damage or disorganization; and prevent fulfilling public records requests from causing excessive interference with essential functions of the military department.

[§ 323-10-020, filed 2/13/74.]


AMENDATORY SECTION(Amending § 323-10-030, filed 2/13/74)

WAC 323-10-030   ((Description of central and field organization of the military department.)) Availability of public records.   ((The military department is a public safety agency. The administrative office of the agency and its staff are located at Camp Murray, Tacoma, Washington. In addition to the headquarters, the agency has in excess of forty facilities located throughout the state in the form of armories, shops, aircraft facilities and vehicle storage buildings.)) (1) Hours for inspection of records. Public records are available for inspection and copying by appointment during normal business hours of the military department, Monday through Friday, 9:00 a.m. to 4:00 p.m., excluding legal holidays. Original records must be inspected at the offices of the military department. The military department will take reasonable action to protect records from damage and disorganization during inspection. A requestor shall not take military department records from military department offices without the permission of the public records officer or designee.

     (2) Records index and records available on-line. An index of public records is available for use by members of the public. The index, which also includes a list of laws other than those in chapter 42.56 RCW that exempt or prohibit disclosure of specific information or records, may be accessed on-line at http://www.mil.wa.gov. A variety of records is also available on the military department web site. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.

     (3) Making a request for public records.

     (a) Any person wishing to inspect or obtain copies of public records of the military department should make the request in writing by letter, fax, or e-mail addressed to the public records officer or using the military department web site form located at: http://www.mil.wa.gov. Records requests should include the following information:

     • Name of requestor;

     • Address of requestor;

     • Other contact information, including telephone number and e-mail address;

     • Identification of the public records adequate for the public records officer or designee to locate the records; and

     • The date and time of day of the request.

     (b) If the requestor wishes to obtain photocopies or electronic versions of nonelectronic records instead of simply inspecting them, he or she should so indicate and make arrangements to pay for copies of the records. A deposit may be required prior to the military department's collection of the records requested. Pursuant to WAC 323-10-070, photocopies will be provided at fifteen cents per page and scanned copies will be provided at six cents per page.

     (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 department will presume that the request is fully and accurately described in this confirmation unless the requestor promptly indicates otherwise in writing.

[§ 323-10-030, filed 2/13/74.]


AMENDATORY SECTION(Amending § 323-10-040, filed 2/13/74)

WAC 323-10-040   ((Operations and procedures.)) Processing of public records requests -- General.   ((The military department is the National Guard Headquarters for all Army and Air National Guard units in the state of Washington. The National Guard is that part of the military force of the state that is organized, equipped and federally recognized under the provisions of The National Defense Act of the United States. The National Guard is administered by the governor as "commander-in-chief," through the adjutant general pursuant to general state laws and consistent with federal regulations.)) (1) Order of response. The public records officer or designee will process requests in the order allowing the most requests to be processed in the most efficient manner.

     (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 or scanned documents are requested and terms of payment are met, send the copies to the requestor;

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

     (d) Seek clarification of a request;

     (e) Revise the estimate of when records will be available; or

     (f) Deny the request.

     (3) Failure to respond. If the military 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 to determine the reason for the failure to respond.

     (4) Seeking clarification of a request. The military department may seek clarification of a request that is unclear or does not sufficiently identify the requested records. Such clarification may be requested and provided by telephone. If the requestor does not respond to the request for clarification within thirty days of the military department's request, the requestor's request will be deemed abandoned and may be closed by the military department.

     (5) 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.

     (6) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the military department 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.

     (7) Inspection of records.

     (a) Consistent with other demands, the military 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 military department notification to him or her that the records are available for inspection. 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 military 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.

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

     (9) 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.

     (10) 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 military department has completed a diligent search for the requested records and made any located nonexempt records available for inspection.

     (11) Closing withdrawn or abandoned request. When the requestor either withdraws the request or fails to fulfill his or her obligations to clarify the request, 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 military department has closed the request.

     (12) Later discovered documents. If, after the military department has informed the requestor that it has provided all available records, the military 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.

[§ 323-10-040, filed 2/13/74.]


AMENDATORY SECTION(Amending § 323-10-050, filed 2/13/74)

WAC 323-10-050   Processing of public records ((available)) requests -- Electronic records.   ((All public records of the agency, as defined in WAC 323-010-020, are deemed to be available for public inspection and copying pursuant to these rules, except as otherwise provided by section 31, chapter 1, Laws of 1973, WAC 323-010-090, and any applicable federal law or regulation.)) (1) Requesting electronic records. The process for requesting electronic public records is the same as for requesting paper public records.

     (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.

[§ 323-10-050, filed 2/13/74.]


AMENDATORY SECTION(Amending § 323-10-060, filed 2/13/74)

WAC 323-10-060   ((Public records officer.)) Exemptions.   ((The agency's public records shall be in charge of the public records officer designated by the agency. The person so designated shall be located in the administrative office of the agency. The public records officer shall be responsible for the following: The implementation of the agency's rules and regulations regarding release of public records, coordinating the staff of the agency in this regard, and generally insuring compliance by the staff with the public records disclosure requirements of chapter 1, Laws of 1973, and any other applicable law or regulation.)) (1) The Public Records Act provides that a number of types of documents are exempt from public inspection and copying. In addition, documents are exempt from disclosure if any "other statute" exempts or prohibits disclosure. A list of statutes containing exemptions outside the Public Records Act that restrict availability of some documents held by the military department can be found in the military department public records index which is available on-line at http://www.mil.wa.gov or from the public records officer.

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

[§ 323-10-060, filed 2/13/74.]


AMENDATORY SECTION(Amending § 323-10-070, filed 2/13/74)

WAC 323-10-070   ((Office hours.)) Costs of providing copies of public records.   ((Public records shall be available for inspection and copying during the customary office hours of the agency. For the purposes of this chapter, the customary office hours shall be from 9:00 a.m. to noon and from 1:00 p.m. to 4:00 p.m., Monday through Friday, excluding legal holidays.)) (1) Costs for paper copies. There is no fee for inspecting public records. A requestor may obtain standard black and white photocopies for fifteen cents per page. Copies in color or larger-sized documents cost will be based on the actual cost to reproduce them at the time of the request.

     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 military department will not charge sales tax when it makes copies of public records.

     (2) Costs for electronic records. The cost of electronic copies of records shall be free for information on a CD-ROM when the information already exists in electronic format and it only has to be copied to a CD. The cost of scanning existing office paper or other nonelectronic records is six cents per page. There will be no charge for e-mailing electronic records to a requestor, unless another cost applies such as a scanning fee.

     (3) Costs of mailing. The military department may also charge actual costs of mailing, including the cost of the shipping container.

     (4) Payment. Payment may be made by cash, check, or money order to the military department.

[§ 323-10-070, filed 2/13/74.]


AMENDATORY SECTION(Amending § 323-10-080, filed 2/13/74)

WAC 323-10-080   ((Requests for)) Review of denials of public records.   ((In accordance with requirements of chapter 1, Laws of 1973 that agencies prevent unreasonable invasion of privacy, protect public records from damage or disorganization, and prevent excessive interference with essential functions of the agency, public records may be inspected or copied or copies of such records may be obtained, at designated agency locations, by members of the public upon compliance with the following procedures:

     (1) A request may be made in writing or orally. The request shall be presented to the public records officer, or his designee, if the public records officer is not available, at the administrative office of the agency located at Camp Murray during customary office hours. The request shall include the following information for the agency records officer log:

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

     (b) The date upon which the request was made.

     (c) The nature of the request.

     (d) If the matter requested is referenced within an available index maintained by the records officer, a reference to the requested record as it is described in such index.

     (e) If the requested matter is not identifiable by reference to the agency's current available index, an appropriate description of the record requested.

     (2) In all cases in which a member of the public is making a request, it shall be the obligation of the public records officer or staff member to whom the request is made, to assist the member of the public in appropriately identifying the public record requested.)) (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 special assistant to the director. The petition will be affirmed or reversed within five business days following the military department's receipt of the petition, or within such other time as the military department and the requestor mutually agree.

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

[§ 323-10-080, filed 2/13/74.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 323-10-090 Copying.
WAC 323-10-100 Exemptions.
WAC 323-10-110 Review of denials of public records requests.
WAC 323-10-120 Protection of public records.
WAC 323-10-130 Requests to the agency.
WAC 323-10-140 Adoption of form.
WAC 323-10-150 Index.
WAC 323-10-900 Appendix A -- Request for public record -- Form.

© Washington State Code Reviser's Office