WSR 17-16-160
[Filed August 1, 2017, 4:41 p.m., effective August 1, 2017, 4:41 p.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: The purpose of these emergency rules is to allow the department of enterprise services (DES) to use the statutory fee schedule when providing public records and to allow DES to use its discretion to waive charges for providing public records.
EHB 1595 which was passed during the 2017 legislative session, changes the circumstances under which an agency may charge or waive charges for copying public records:
(1) In order to use the statutory fee schedule in lieu of charging actual costs for providing records, agencies are now required to declare by rule the reasons why calculating actual costs would be overly burdensome; and
(2) Agencies may only waive charges for public records requests if it has rules governing such a waiver of charges.
DES currently uses the statutory fee schedule and on occasion waives charges for public records requests. Because of this change in law, DES will not be able to either use the statutory fee schedule or waive charges. Thus, DES may only charge actual costs under EHB 1595. However, DES is unable to calculate actual charges by July 23, 2017, the date EHB 1595 becomes effective.
Citation of Existing Rules Affected by this Order: Amending WAC 200-01-075.
Statutory Authority for Adoption: RCW 42.56.120.
Other Authority: RCW 43.19.011.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: DES is unable to provide copies of public records to requestors without amending its public records request rules.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: August 1, 2017.
Jack Zeigler
Policy and Rules Manager
AMENDATORY SECTION (Amending WSR 12-02-004, filed 12/22/11, effective 1/22/12)
WAC 200-01-075 Costs of providing public records.
(1) There is no fee for inspecting public records. DES may ((impose a)) charge for providing public records((. DES)) or waive charges for providing public records. DES will charge using the fees listed under RCW 42.56.120 and will maintain a fee schedule on its web site.
(2) ((The charge for providing public records may be the actual cost incident to providing the records.
(a) The charge may include the actual cost of the postage or delivery, including the cost of the shipping container, cost of duplicating tape recordings, videotapes, photographs, slides, disks or similar media.
(b))) There will be no charge for emailing electronic records to a requestor, unless another cost applies.
(3) ((If determining the actual cost is too burdensome or if the cost cannot be determined, DES may charge fifteen cents for each page, however produced.)) DES has determined calculating the actual costs for providing public records is unduly burdensome for the following reasons:
(a) The level of effort, supplies, and shipping costs incurred by DES vary widely for each records request and are unique to each records request;
(b) Recordkeeping needed to capture all allowed costs unnecessarily increases DES's administrative overhead; and
(c) Determining actual costs for each records request within the statutory response time frame requires a greater than normal level of administrative resources.
(4) Before beginning to copy public records, the public records officer may require:
(a) A deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor;
(b) The payment of the remainder of the copying costs before providing all the records; or
(c) The payment of the costs of copying an installment before providing that installment. The department will not charge sales tax when it makes copies of public records.
(5) Payment may be made by cash in the exact amount charged, check, or money order to the department of enterprise services.