WSR 18-01-009

EMERGENCY RULES

[Filed December 7, 2017, 8:41 a.m., effective December 7, 2017, 8:41 a.m.]

Effective Date of Rule: Immediately upon filing.

Purpose: Compliance with HB [EHB] 1595 requiring each state agency to declare by rules or regulations the reasons it is not calculating the actual costs it charges for providing public records, if doing so would be unduly burdensome - adoption of the statutory fee schedule.

Citation of Rules Affected by this Order: Amending WAC 137-08-110.

Statutory Authority for Adoption: RCW 42.56.120.

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: Under the Public Records Act (PRA), agencies have the ability to charge a requestor for certain costs associated with providing copies of records in response to the requestor's public records request. In the 2017 legislative session, the legislature amended the provision of the PRA that governs public records charges. Under the law prior to the 2017 amendments, agencies could only charge for photocopies, not scanned records and other electronic records. The 2017 amendments allow agencies to charge requestors for things like scanning records, providing records via email or other means of electronic delivery.

HB [EHB] 1595, passed in the 2017 legislative session, amending RCW 42.56.120, the provision of the PRA that governs agency charges to requestors for providing copies of public records. These amendments in HB [EHB] 1595 were designed to modernize this provision to reflect changes in the way agencies provide copies of records to requestors.

HB [EHB] 1595 becomes law on July 23, 2017, and a rule must be in place that establishes the actual costs of producing records, or a rule must be in place that declares the calculation of actual costs would be "unduly burdensome." Otherwise an agency would not be able to impose any fee on PRA requestors. The department of corrections (DOC) is taking the latter approach and will declare that it will be "unduly burdensome" to calculate actual costs and will file an emergency rule. This declaration will allow DOC to utilize the statutory default fee schedule created by the legislature in the 2017 amendments beginning July 23, 2017, the date the legislation goes into effect, and to be in full compliance with the PRA, as amended. The agency will be filing a preproposal statement of inquiry to begin the permanent rule-making process.

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 0, Repealed 0.

Number of Sections Adopted at the 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 0, 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: December 16, 2017.

Stephen Sinclair

Secretary