WSR 17-22-042
[Filed October 24, 2017, 5:17 p.m.]
Original Notice.
Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).
Title of Rule and Other Identifying Information: WAC 246-08-990 Fees for copying of public records.
Hearing Location(s): On December 11, 2017, at 9:30 a.m., at the Department of Health, Town Center 3, Room 224, 243 Israel Road S.E., Tumwater, WA 98501.
Date of Intended Adoption: December 18, 2017.
Submit Written Comments to: Melanee Auldredge, Department of Health, P.O. Box 47890, Olympia, WA 98501, email, fax 360-236-4414, by December 1, 2017.
Assistance for Persons with Disabilities: Contact Melanee Auldredge, phone 360-236-4220, TTY 360-833-6388 or 711, email, by November 27, 2017.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: During the 2017 legislative session, EHB 1595 (chapter 304, Laws of 2017) was passed into law. Beginning July 23, 2017, the law prohibits state agencies, including the department of health (department), to recover any costs under the Public Records Act, without adopting a rule (except a $2.00 flat fee). At this time, the department is proposing to adopt the default fee schedule set forth in the new law. The proposed rule also: (a) Declares the reasons why it would be unduly burdensome for the department to calculate actual costs; (b) states that the department may charge fees for production of copies of public records; (c) establishes that the department may waive the costs assessed for a request when the department has determined that the request can be produced quickly and at little cost; and (d) states that the department will not provide customized access if doing so will interfere with agency business.
Reasons Supporting Proposal: The intent is to allow agencies to recover some of the costs associated with fulfilling public records requests, with the exception of staff time. The proposed rule provides the department with flexibility and also allows it to enter into agreements with requestors for alternate cost arrangements, and to charge actual costs for customized access.
Statutory Authority for Adoption: RCW 43.70.040, 42.56.120.
Statute Being Implemented: RCW 42.56.120(2).
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of health, governmental.
Name of Agency Personnel Responsible for Drafting: Melanee Auldredge, 101 Israel Road S.E., Tumwater, WA 98501, 360-236-4220; Implementation: Judie Morton, 101 Israel Road S.E., Tumwater, WA 98501, 360-236-4221; and Enforcement: Shawn Murinko, 101 Israel Road S.E., Tumwater, WA 98501, 360-236-4010.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328. RCW 34.05.328 (5)(b)(vi) exempts rules that set or adjust fees or rates pursuant to legislative standards.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules set or adjust fees under the authority of RCW 19.02.075 or that set or adjust fees or rates pursuant to legislative standards, including fees set or adjusted under the authority of RCW 19.80.045.
Explanation of exemptions: Sets fees.
October 24, 2017
John Wiesman, DrPH, MPH
WAC 246-08-990 Copying fees.
The copy fees and payment procedures in this section apply to public records requests to the department of health (department) under chapter 42.56 RCW and received on or after July 23, 2017.
(1) Pursuant to RCW 42.56.120 (2)(b), the department is not calculating all actual costs for copying records because to do so would be unduly burdensome for the following reasons:
(a) The department does not have the resources to conduct a study to determine all its actual copying costs;
(b) To conduct a study to determine actual copying costs would interfere with other essential agency functions; and
(c) Through the 2017 legislative process, the public and requestors have commented on and been informed of authorized fees and costs, including fees for electronic records, provided in RCW 42.56.120 (2)(b), (c), (3), and (4).
(2) The department will charge for copies of records pursuant to the default fees in RCW 42.56.120 (2)(b) and (c).
(3) The department will charge for customized services pursuant to 42.56.120(3). The department will not provide customized access if doing so will interfere with other essential agency functions.
(4) Under RCW 42.56.130, the department may charge other copy fees authorized by statutes outside of chapter 42.56 RCW.
(5) The department may enter into an alternative fee agreement with a requestor under RCW 42.56.120(4).
(6) The following fees for copying methods used by the department include:
Copying Method
Records scanned into electronic format
Electronic file
$.05/every four electronic files or attachments uploaded to an email, cloud storage service, or other electronic delivery system
Transmission of electronic records
Flat fee
$2.00 (agencies have the option to charge up to $2 as an alternative to actual or default costs if the agency reasonably estimates and documents that the costs are equal or more than $2)
(7) Requestors are required to pay for copies in advance of receiving records.
(8) Fee waivers are an exception and may be available for some small requests:
(a) At the discretion of the department a fee waiver may be available when:
(i) All of the records responsive to an entire request are paper copies only and are twenty-five or fewer pages; or
(ii) All of the records responsive to an entire request are electronic and can be provided in a single email with attachments of a size totaling no more than the equivalent of one hundred printed pages. If that email for any reason is not deliverable, records will be provided through another means of delivery, and the requestor will be charged in accordance with this section.
(b) Fee waivers are not applicable to records provided in installments.
(9) The department may require an advance deposit of ten percent of the estimated fees when the copying fees for an installment or an entire request, or customized service charge, exceeds twenty-five dollars.
(10) All required fees must be paid in advance of release of the copies or an installment of copies, or in advance of when a deposit is required. The department will notify the requestor of when payment is due.
(11) The requestor must make payment by check or money order to the Washington state department of health. The department prefers not to receive cash. For cash payments, it is within the department's discretion to determine the denomination of bills and coins that will be accepted.
(12) The department will close a request when a requestor fails by the payment date to pay in the manner prescribed for records, an installment of records, or a required deposit.