WSR 15-19-131

PROPOSED RULES

DEPARTMENT OF TRANSPORTATION

[Filed September 21, 2015, 1:06 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 14-21-149.

Title of Rule and Other Identifying Information: Chapter 468-06 WAC, Public access to information and records. We are updating the WAC to bring up to current laws and regulations. We are also updating the WAC to meet business needs.

Hearing Location(s): Washington State Department of Transportation (WSDOT), Nisqually Conference Room (1D2), Maple Park Avenue, Olympia, WA 98504, on October 29, 2015, at 1:00 p.m.

Date of Intended Adoption: October 29, 2015.

Submit Written Comments to: Robert Fossett, 310 Maple Park Avenue, P.O. Box 47409, Olympia, WA 98504, e-mail fossetr@wsdot.wa.gov, fax (360) 705-7714, by October 28, 2015.

Assistance for Persons with Disabilities: Contact Grant Heap by October 28, 2015, (360) 705-7760.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Chapter 468-06 WAC is being updated to bring up to current office practices and current laws under the Public Records Act. Changes have been made and simplified to current business practices to assist requestors to retrieve records from their public records requests. There are no anticipated negative effects since these rules are already governed by current state statutes. We are removing certain chapters to simplify and combine certain items to easily explain office procedures.

Reasons Supporting Proposal: To simplify the chapter and make it more understandable and to show current business practices.

Statutory Authority for Adoption: Chapter 42.56 RCW.

Statute Being Implemented: Chapter 42.56 RCW.

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

Name of Proponent: WSDOT, records management office, governmental.

Name of Agency Personnel Responsible for Drafting: Robert Fossett, 310 Maple Park Avenue, Olympia, WA, (360) 705-7714; Implementation and Enforcement: Kara Larsen, 310 Maple Park Avenue, Olympia, WA, (360) 705-6366.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule will not impact any small businesses.

A cost-benefit analysis is not required under RCW 34.05.328. There is no financial impact due to the implication of this rule.

September 21, 2015

Kathryn W. Taylor

Assistant Secretary

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-010 ((What is the purpose of this chapter?)) Purpose.

The purpose of this chapter is to((:

(1) Publish department of transportation organizational information.

(2) Establish the procedures we will follow to provide access to public records prepared, owned, used, or held by the department)) provide rules for the Washington state department of transportation (the department), implementing the provisions of chapter 42.56 RCW that relate to requests for inspection and copying of public records.

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-020 ((What definitions apply to public records?)) Definitions.

((Definitions used in the Public Records Act, chapter 42.56 RCW, apply to these rules.)) (1) "Denial" means the department withheld a record in part or in its entirety based on a statutory or other legal exemption.

(2) "Department" means the Washington state department of transportation.

(3) "Disclosure" means the existence of a record is revealed to a requestor in response to a PRA request, regardless of whether it is produced.

(4) "Production" means disclosed records are produced (made available for inspection and copying).

(5) "Public Records Act" or "PRA" means chapter 42.56 RCW.

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-040 ((How is the department of transportation organized?)) Organization of the department and records management and public disclosure office.

((The department of transportation is a statutorily created agency of the state of Washington. We have headquarters, division, and regional offices.

The department of transportation organization chart:

))

The department is a statutorily created agency of the state of Washington, with headquarters, division, and regional offices. The department's public records office is headed by the director of the torts, claims and records management division. Current organizational and contact information can be found on the records management and public disclosure web site at: http://www.wsdot.wa.gov/Contact/PublicDisclosure.

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-050 ((Who is the department's)) Public records officer((?)).

(((1) The director of administrative services is the department's public records officer. The director is responsible for:

(a) Ensuring employees comply with department processes and procedures and state laws about public disclosure;

(b) Managing headquarters, regional, and division public disclosure coordinators and delegating responsibilities to them;

(d) Contacting the attorney general's office for legal opinions on public record exemptions, subpoenas, and other legal matters.

(2) You may contact the headquarters public records officer at:

Transportation Building

310 Maple Park Avenue S.E.

P.O. Box 47300

Olympia, WA 98504-7300

Telephone: 360-705-7000

TTY: 1-800-833-6388

www.wsdot.wa.gov

(3) In the absence of the public records officer, the records manager performs the duties of the public records officer.

(4) A public disclosure coordinator is available in each region or division. Region and division contact information is available at www.wsdot.wa.gov.)) The department's public records officer is designated by the department as the person responsible for implementing the department's rules and regulations, for acknowledging receipt of public records requests, and for coordinating with staff statewide to identify, gather, and release public records in compliance with the public records disclosure requirements.

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-060 ((How do I request a copy of a public record?)) Requesting public records.

(((1) You may obtain a copy of a public record by submitting a written request to the department's public disclosure coordinator. See WAC 468-06-050. Coordinators will accept a letter, e-mail, fax, or department's request for public records form (722-023 EF).

You may obtain a copy of the form by calling or contacting a public disclosure coordinator or at www.wsdot.wa.gov.

(2) If you do not use the department's form, requests should:

(a) Provide the name, address, telephone number, and e-mail address of the person requesting the record.

(b) Provide the date and time of the request.

(c) Provide a clear description of the record. You should be as specific as possible. Public disclosure coordinators may ask you to explain or clarify your request because it is not specific enough.

(d) Indicate in the request that this is a "request for public records.")) (1) Submitting a request. Requests for public records must be submitted in writing. Requests can be made by:

(a) Completing the department's public records request form (DOT Form 722-023) which is available on the department's web site at www.wsdot.wa.gov; or

(b) A written request to the department that includes:

(i) The name, address, telephone number, and e-mail address of the person requesting the records;

(ii) The date and time of the request;

(iii) A description of the public records sought adequate for the department to identify and locate all responsive records;

(iv) Language stating that the request for records is intended as a public records request or a similar statement placing the department on fair notice that records are being sought under the PRA; and

(v) A statement indicating whether copies or the records are sought or if the requestor wants to arrange to inspect records.

Requests can be submitted to the department via e-mail, U.S. mail, hand delivery, or facsimile at:

Public Records Office

Transportation Building

310 Maple Park Avenue S.E.

P.O. Box 47410

Olympia, WA 98504-7300

E-mail: publicdislcosurerequests@wsdot.wa.gov

Facsimile: 360-705-6808

Failure to submit requests to the department at the above location may result in a delay in the department's response.

(2) Requested production. Nonexempt records are available through inspection, paper copies, or electronic copies. The requestor should indicate the production preference and make arrangements to pay the fees, if any.

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-080 ((How will the department respond to my public records request?)) Processing public records requests.

(((1) A public disclosure coordinator will provide you with a written response within five business days of receiving your request for public records. An initial written response may:

(a) Acknowledge we have received the request and provide a reasonable estimate of the time it will take to respond and briefly explain the time estimate.)) (1) Initial response. The department will provide a written response within five business days of receiving a request for public records. A business day is 8:00 a.m. to 5:00 p.m., Monday through Friday, exclusive of legal holidays. Legal holidays are prescribed in RCW 1.16.050. Requests received on a Saturday, Sunday, or a legal holiday, or after 5:00 p.m. on a business day, will be deemed received on the next day which is neither a Saturday, Sunday, nor a legal holiday.

An initial written response may:

(a) Acknowledge receipt of the request and provide a reasonable estimate of the time it will take to respond.

(i) Time estimates are based on many issues including the complexity of the request, clarity of the request, number of documents, location of documents, determining if records are exempt, redaction((, legal issues, court decision, third-party involvement, or determining if records are exempt. In any case, coordinators will provide you a brief written explanation for the time necessary to respond to your request.

(ii) We may extend reasonable estimates when warranted. A public disclosure coordinator will contact you if this happens.)) requirements, third-party involvement, and court processes.

(ii) The department may extend time estimates when circumstances warrant.

(b) Provide the requestor the records.

(d) Provide part of the records and deny another part.

(e) Deny the request.

(2) ((We will take timely action on requests and make the records "promptly available.")) Inspection requests. The department will notify the requestor in writing when nonexempt records are ready for inspection. The requestor must schedule an appointment to inspect the records. A department staff person will remain with all public records during inspection. Reviewing time may be limited so as to avoid undue disruption to department business. Records are generally available for inspection and copying during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding legal holidays.

(3) Paper requests. The department, upon payment of fees, if any, will send paper copies of nonexempt records to the requestor.

(4) Electronic requests. The department, upon payment of fees, if any, may scan records or copy nonexempt electronic records to a CD-ROM or DVD, send via e-mail, or post online for download.

(5) Installments. The department may provide records for inspection or copying in installments.

(6) Exemptions. When the department determines that a record is exempt from disclosure, either partially or entirely, the department will notify the requestor in writing. The notification will list each exempt record or portion thereof, the law that allows the exemption, and a brief explanation. The department will withhold the record entirely or will redact exempt portions and provide the nonexempt portions of the records. Exemptions are set out in chapter 42.56 RCW and any other applicable law.

(7) Court protection of records. The department may provide written notification to a department employee, a person, or a business named in a requested record or to whom a record specifically pertains and whose rights may be affected by the release of the record. The department's written notification may:

(a) Identify the records requested and include the name and location of the requestor, when known.

(b) Advise the employee, person, or business that they may seek a court injunction in superior court in accordance with RCW 42.56.540.

(c) Inform the employee, person, or business of the date that the department will disclose the record to the requestor unless the employee, person, or business provides the department with a court order enjoining such disclosure.

(8) Review of denial of request.

(a) Petition for internal administrative review of denial of access. Any requestor who objects to the initial denial or partial denial of a records request may petition in writing to the department for a review of that decision. The petition shall include a copy of or reasonably identify the written statement by the department denying the request.

(b) Consideration of petition for review. The department will consider the petition and either affirm or reverse the denial within ten business days following receipt of the petition, or within such other time as the department and the requestor mutually agree to.

(c) Review by the attorney general's office. Pursuant to RCW 42.56.530, if the department denies a requestor access to a public record because it claims the record is exempt in whole or in part from disclosure, the requestor may request the attorney general's office review the matter.

(d) 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.

(9) Closing request. The department will inform the requestor in writing and close the request when:

(a) The inspection of records is complete;

(b) All reasonably identifiable responsive nonexempt records have been provided; or

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-090 ((What is the fee for obtaining a copy of a public record?)) Fees.

(((1) The department will not charge you for any standard request of less than twenty-five copies. A standard request is a black and white copy on 8 1/2" x 11" plain white paper.

(2) You will be charged fifteen cents per page for all standard requests of twenty-five copies or more and the actual cost of all nonstandard requests. You may obtain a list of nonstandard costs from a public disclosure coordinator.

(3) A public disclosure coordinator will notify you by mail if there is a copying charge.

(4) The department will require full payment for all copying requests before providing the records.)) The department will notify the requestor of any fees associated with the request and requires full payment before providing records.

(1) Costs for paper and electronic copies.

(a) There is no fee for inspecting public records or e-mailing electronic records to a requestor, unless another cost applies, such as a scanning fee.

(b) The department will charge an amount necessary to reimburse its costs for providing paper and electronic copies of records, including costs for electronic copies on a CD-ROM or posting on online and scanning paper or other nonelectronic records.

(c) The fee amounts shall be reviewed from time to time by the department, and shall represent the costs of providing copies of public records and for use of the department's equipment, including staff time spent copying or scanning records, preparing records for copying or scanning, and restoring files. This charge is the amount necessary to reimburse the department for its actual costs. The charge for special copy work of nonstandard public records shall reflect the total cost, including the staff time necessary to safeguard the integrity of these records.

(d) The department may charge actual costs of mailing, including the cost of the shipping container.

(2) Waiver of fees. The department is authorized to waive any fees if the department determines it is cost effective to do so.

AMENDATORY SECTION (Amending WSR 08-16-030, filed 7/29/08, effective 8/29/08)

WAC 468-06-140 ((Does the department maintain a public records index?)) Department index.

(((1) The department's records indexes are located in the records and information services office, transportation building, Olympia, Washington.

(2) The records officer is responsible for:

(a) Managing the index system.

(b) Coordinating all aspects of the index.

(c) Revising indexes when necessary.)) The department finds that it would be unduly burdensome and would interfere with department operations to maintain an index of records as specified in RCW 42.56.070 because of the complexity and diversity of its operations and the resulting volume of correspondence, reports, studies, and other materials.

REPEALER

The following sections of the Washington Administrative Code are repealed:


WAC 468-06-030	What public records are exempt from public inspection and copying?
WAC 468-06-070	When are public records available for inspection and copying?
WAC 468-06-100	What are the rules for inspecting nonexempt public records?
WAC 468-06-110	What happens if the department decides that all or part of a requested public record is exempt from disclosure?
WAC 468-06-120	How do I request that the department reconsider its decision to deny my request for public records?
WAC 468-06-125	Will the department notify a person or business when a public records request may affect their rights and be potentially exempt?
WAC 468-06-130	How do I request an electronic public record?
WAC 468-06-135	Will the department provide an electronic copy of a printed public record?
WAC 468-06-150	How long does the department keep requests for public records?