WSR 18-07-082 PROPOSED RULES LOWER COLUMBIA COLLEGE [Filed March 20, 2018, 9:03 a.m.] Original Notice. Preproposal statement of inquiry was filed as WSR 18-03-017. Title of Rule and Other Identifying Information: Amending chapter 132M-110 WAC, Public records disclosure policy; amending WAC 132M-110-010, 132M-110-020, 132M-110-050, 132M-110-060, 132M-110-080, 132M-110-090 and 132M-110-100; and repealing WAC 132M-110-030, 132M-110-040, 132M-110-070, 132M-110-110, 132M-110-120, 132M-110-130, 132M-110-140, and 132M-110-990. Hearing Location(s): On May 16, 2018, at 5:00 p.m., at 1600 Maple Street, Administration Building, Room 100, Heritage Room, Longview, WA 98632. Date of Intended Adoption: May 16, 2018. Submit Written Comments to: Linda Clark, 1600 Maple Street, P.O. Box 3010, Longview, WA 98632, email rulemaking@lowercolumbia.edu, fax 360-442-2129, by May 9, 2018. Assistance for Persons with Disabilities: Contact Linda Clark, phone 360-442-2100, fax 360-442-2129, TTY 800-833-6388, email rulemaking@lowercolumbia.edu, by May 9, 2018. Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Amending chapter 132M-110 WAC to clarify procedures regarding the disclosure of records, new definitions, fees, request procedure, clarification when the request is unclear, and current statute citations. Reasons Supporting Proposal: HB [ESHB] 1594 and [EHB] 1595 passed during the 2017 legislature, making the Public Records Act amendments effective July 23, 2017. Chapter 132M-110 WAC establishes procedures the college follows to provide full access to public records and to implement the provisions of the Public Records Act (chapter 42.46 RCW). The rule establishes procedure for both persons requesting access to public records and also for college staff. The proposed amendment clarifies procedures regarding disclosure of electronic record in order to remain up-to-date with current technology. Updates to the rule are necessary to keep procedures current and reflect recent legislative changes. The 2017 legislature amended RCW 42.56.120, section 3, chapter 304, Laws of 2017, to require that effective July 23, 2017, if an agency uses the new law's amended statutory default copy fee schedule (rather than determining actual costs of copies), the agency must have a rule declaring the reason it is not calculating actual costs is because to do so would be unduly burdensome. Lower Columbia College is not calculating actual costs for copying records because to do so would be unduly burdensome. Lower Columbia College is adopting a rule so it can use the statutory default copy fee schedule. Statutory Authority for Adoption: RCW 28B.50.140, 42.56.040, 42.56.070, 42.56.100, 42.56.120 (as amended by chapter 304, Laws of 2017). Statute Being Implemented: Chapter 42.56 RCW. Rule is not necessitated by federal law, federal or state court decision. Name of Proponent: Lower Columbia College, governmental. Name of Agency Personnel Responsible for Drafting: Kendra Sprague, 1600 Maple Street, Administration Building 115, Longview, WA 98632, 360-442-2121; Implementation and Enforcement: Nolan Wheeler, 1600 Maple Street, Administration Building 203, Longview, WA 98632, 360-442-2201. 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. Pursuant to RCW 34.05.328 (5)(a)(i), this agency is not mandated to comply with RCW 34.05.328. Further, the agency does not voluntarily make that section applicable to the adoption of this rule pursuant to subsection (5)(a)(ii), and to date the joint administrative rules committee has not made that section applicable to the adoption of this rule. 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 rule content is explicitly and specifically dictated by statute; and 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. Is exempt under RCW 42.56.070, 42.56.120. Explanation of exemptions: To the extent there are costs assessed by this agency for records provided in response to public records requests by small businesses, the authorized costs are set out in statute and apply to all requesters. RCW 42.56.070, 42.56.120. March 15, 2018 Kendra Sprague Vice President of Foundation
Human Resources and Legal Affairs
AMENDATORY SECTION (Amending Order 1-75, filed 11/10/75)
WAC 132M-110-010 Authority and purpose.
((The purpose of this chapter shall be to ensure compliance by the Community College District Number Thirteen with the provisions of chapter 42.17 RCW Disclosure—Campaign finances—Lobbying—Records; and in particular with RCW 42.17.250- 42.17.320 of that act, dealing with public records.)) (1) RCW 42.56.070(1) requires Lower Columbia College (college or 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 Lower Columbia College will follow in order to provide access to public records. These rules provide information to persons wishing to request access to public records of the college and establish processes for both requestors and college 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 access to information concerning the conduct of government, mindful of individuals' privacy rights and the desirability of the efficient administration of government. The act and these rules will be interpreted in favor of disclosure. In carrying out its responsibilities under the act, the college will be guided by the provisions of the act describing its purposes and interpretation.
AMENDATORY SECTION (Amending Order 1-75, filed 11/10/75)
WAC 132M-110-020 Definitions.
(1) ((Public records. "Public record" indicates those documents which contain 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.)) "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. This definition does not include records that are not otherwise required to be retained by the college and are held by volunteers who:
(a) Do not serve in an administrative capacity;
(b) Have not been appointed by the college to a college board, commission, or internship; and
(c) Do not have a supervisory role or delegated college authority.
(2) ((Writing.)) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation((,)) including, but not limited to, 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) Community College District Number Thirteen.)) motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.
(3) Relating to the "conduct of government" means to be a public record, a document must relate to the conduct of government or the performance of any governmental or proprietary function. Almost all records held by an agency relate to the conduct of government; however, some do not. A purely personal record having absolutely no relation to the conduct of government is not a public record. Even though a purely personal record might not be a public record, a record of its existence might be. For example, a record showing the existence of a purely personal email sent by an agency employee on an agency computer would probably be a public record, even if the contents of the email itself were not.
(4) "Prepared, owned, used, or retained" means a public record is a record prepared, owned, used, or retained by an agency. A record can be used by an agency even if the agency does not actually possess the record. If an agency uses a record in its decision-making process, it is a public record. For example, if an agency considered technical specifications of a public works project and returned the specifications to the contractor in another state, the specifications would be a public record because the agency used the document in its decision-making process. The agency could be required to obtain the public record, unless doing so would be impossible. An agency cannot send its only copy of a record to a third party for the sole purpose of avoiding disclosure.
(5) "Identifiable record(s)" means the public record request must be for identifiable records. A request for all or substantially all records prepared, owned, used, or retained by the college is not a valid request for identifiable records, provided that a request for all records regarding a particular topic or containing a particular keyword or name shall not be considered a request for all of the college's records.
(6) "Bot request" means a request for public records that the college reasonably believes was automatically generated by a computer program or script.
(7) The Community College District Number Thirteen is an agency organized by statute pursuant to RCW 28B.50.040. The Community College District Number Thirteen shall hereinafter be referred to as the "college" and includes the institution known as Lower Columbia College. Where appropriate, the term college also refers to the board of trustees, and the officers, agents, and employees of the college.
AMENDATORY SECTION (Amending Order 1-75, filed 11/10/75)
WAC 132M-110-050 Public records availability.
((All public records of the college, as defined in WAC 132M-110-020 are deemed to be available for public inspection and copying pursuant to these rules, except as otherwise provided by RCW 42.17.310 and WAC 132M-110-100.)) (1) Hours for inspection of records. Once a request is processed, public records of Lower Columbia College are available for inspection or receipt of copies during normal business hours of the college, Monday through Thursday 9:00 a.m. to 4:00 p.m., excluding legal holidays and other college closures. Records must be inspected at the Administration Building, 1600 Maple Street, Longview, WA 98632.
(2) Records index. An index of public records is available for use by members of the public, including nonexempt final orders, declaratory orders, interpretive statements, and policy statements, as defined by RCW 42.56.070(5), issued after June 30, 1990, by the board of trustees of the district, the presidents of the colleges, or their designees.
Form. The index shall reference final orders, declaratory orders, interpretive statements, or policy statements by one or more of the following classifications: Date of implementation, organizational unit, or subject matter.
Requests for access to indexes. Information regarding public inspection of indexes, their location, and a schedule for revising and updating these indexes can be obtained by contacting the public records officer.
(3) Organization of records. Lower Columbia College will maintain its records in a reasonably organized manner. The college will take reasonable actions to protect records from damage and disorganization. A requestor shall not take the college's records from Lower Columbia College offices without the permission of the public records officer or designee. A variety of records are available on the Lower Columbia College web site at www.lowercolumbia.edu. Requestors are encouraged to view the documents available on the web site prior to submitting a records request.
(4) The college shall not impose copying charges for access to or downloading of records that the college routinely posts on its public internet web site prior to receipt of a request unless the requestor has specifically requested that the college provide copies of records through other means.
(5) Making a request for public records.
(a) Any person wishing to inspect or receive copies of public records of the college should make the request in person during the college's normal office hours, or in writing on the college's request form, or by letter, fax, or email addressed to the public records officer. While no official format is required for making a records request, the college recommends that the requestor submit requests using the college provided request form. The request form is available at the office of the public records officer and online at www.lowercolumbia.edu. Regardless of format, the request must include the following information:
(i) Name of requestor;
(ii) Address of requestor;
(iii) Other contact information, including telephone number and any email address;
(iv) Identification of the public records must be for identifiable records; and
(v) The date and time of day of the request.
(b) If the requestor wishes to have copies of the records made instead of simply inspecting them, the requestor should so indicate and make arrangements to pay for copies of the records or a deposit.
(c) The public records officer or designee may accept requests for public records that contain the information in subsection (4) of this section by telephone or in person. If the public records officer or designee accepts such a request, they will confirm receipt of the information and the substance of the request in writing.
(d) The act does not allow an agency to provide access to "lists of individuals requested for commercial purposes." The request form includes an inquiry of the requestor whether the request is for commercial purposes. Lower Columbia College may also require a requestor to sign a declaration attesting that the request is not for use for commercial purposes.
AMENDATORY SECTION (Amending Order 1-75, filed 11/10/75)
WAC 132M-110-060 Public records officer.
((The college's public records shall be in the charge of the records officer designated by the college president. The person so designated may in turn designate persons in the administrative office to implement this section. The records officer and his designees shall be responsible for:
(1) The implementation of the rules and regulations of the college regarding release of public records.
(2) Coordinating the staff of the college in this regard.
(3) Insuring compliance by the staff with the public disclosure requirements of chapter 42.17 RCW.)) (1) Any person wishing to request access to public records of Lower Columbia College, or seeking assistance in making such a request should contact the public records officer of the college:
Vice President of Administration
Lower Columbia College
1600 Maple Street
Longview, WA 98632
Phone: 360-442-2201
Fax: 360-442-2109
Email: publicrecords@lowercolumbia.edu
Information is also available at the college's web site at www.lowercolumbia.edu.
(2) The public records officer will oversee compliance with the act but another college staff member may process requests. Therefore, these rules will refer to the public records officer or designee.
AMENDATORY SECTION (Amending Order 1-75, filed 11/10/75)
WAC 132M-110-080 Requests for public records.
((In accordance with requirements of chapter 42.17 RCW that agencies prevent unreasonable invasions 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, by members of the public, upon compliance with the following procedures:
(1) A request shall be made in writing upon a form prescribed by the college which shall be available at its administrative office on the campus. The form shall be presented to the records officer and/or his designees at the administrative office on the campus during customary office hours. The request shall include the following information:
(a) The name of the person requesting the record;
(b) The time of day and calendar date on which the request was made;
(c) The nature of the request;
(d) If the material requested is referenced within the current index maintained by the records officer, a reference to the requested record as it is described in the index;
(e) If the material requested is not identifiable by reference to the current 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 records officer and/or his designees to assist the member of the public in appropriately identifying the public record requested.
(3) The records officer and/or his designee to whom the request is presented shall respond promptly and
(a) Make the requested document available, or
(b) State that such a document does not exist, or
(c) Ask for clarification of the document requested, or
(d) Deny access if the record is exempt from public inspection under WAC 132M-110-050 as determined by RCW 42.17.310.)) Both requestors and agencies have responsibilities under the act. The public records process can function properly only when both parties perform their respective responsibilities. An agency has a duty to promptly provide access to all nonexempt public records. A requestor has a duty to request identifiable records, inspect the assembled records or pay for the copies, and be respectful to agency staff.
(1) Providing "fullest assistance." Lower Columbia College is charged by statute with adopting rules which provide for how it will provide full access to public records, protect records from damage or disorganization, prevent excessive interference with other essential functions of the agency, provide fullest assistance to requestors, and provide the timeliest possible action on public records requests. 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 are requested and payment of a deposit for the copies, if any, is made or terms of payment are agreed upon, send the copies to the requestor;
(c) Provide a reasonable estimate of when records will be available; or
(d) Request clarification from the requestor by telephone or in writing if the request is unclear or does not sufficiently identify the requested records. To the greatest extent possible, the request for clarification will provide a reasonable estimate of the time required to respond to the request if it is not clarified. If the requestor fails to clarify the request, and the entire request is unclear, the public records officer need not respond to it. Otherwise, the public records officer must respond to those portions of the request that are clear. Once clarification is received, the public records officer or designee may revise the estimate of when records will be available; or
(e) Deny the request.
(3) Protecting rights of others. In the event the requested records contain information that may affect rights of others and may reasonably 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.
(4) Records exempt from disclosure. Some records are exempt from disclosure, in whole or in part. If the college 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.
(5) Inspection of records.
(a) Consistent with other demands, the college 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 college to copy.
(b) The requestor must claim or review the assembled records within thirty days of the college's notification that the records are available for inspection or copying. The college will notify the requestor in writing of this requirement and inform the requestor to contact the college to make arrangements to claim or inspect 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 college 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.
(6) Providing copies of records. After inspection is complete, the public records officer or designee shall make the requested copies or arrange for copying by college staff.
(7) 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 the public records officer 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.
(8) 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 Lower Columbia College has completed a diligent search for the requested records and made any located nonexempt records available for inspection.
(9) Closing withdrawn or abandoned request. When the requestor either withdraws the request or fails to fulfill the obligation to inspect the records or pays the deposit or final payment for the requested copies, the public records officer will close the request and indicate to the requestor that the college has closed the request.
(10) Later discovered documents. If, after the college has informed the requestor that it has provided all available records, the college 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.
AMENDATORY SECTION (Amending Order 1-75, filed 11/10/75)
WAC 132M-110-090 ((Copying.)) Charges for public records.
((No fee shall be charged for the inspection of public records. The college shall charge a minimum fee of twenty-five cents per page of copy for providing copies of public records. In the event the copying of public records would unreasonably burden existing personnel of the college, or additional personnel and/or equipment would have to be added because of the request(s) for copying the public records, then a reasonable charge may be added to the twenty-five cents per copy minimum to reflect the cost for additional personnel or equipment. The increased cost shall be determined by the records officer and shall be stated on the form requesting the copying of public records when the same request is approved by the records officer. In any case where the records officer estimates that the cost of duplication of a request will exceed ten dollars, then he may at his discretion require an advance payment of all or a percentage of the cost estimate prior to complying with the request for duplication. When, in the opinion of the records officer, it would be less expensive or more practical to duplicate public records by contract with a printing company, then the records officer shall have the authority to do the same and the actual cost of the printing shall be paid by the person requesting the duplication.)) Calculating the actual costs of charges for providing public records is unduly burdensome because it will consume scarce college resources to conduct a study of actual costs, and it is difficult to accurately calculate all costs directly incident to copying records, including equipment and paper costs, data storage costs, electronic production costs, and staff time for copying and sending requested records. Instead of calculating the actual costs of charges for records, the college president or designee shall establish, maintain, and make available for public inspection and copying a statement of costs that the college charges for providing photocopies or electronically produced copies of public records, and such charges for records shall not exceed the maximum default charges allowed in RCW 42.56.120 (2)(b). The college may also use any other method authorized by the Public Records Act for imposing charges for public records including, but not limited to, charging a flat fee, charging a customized service charge, or charging based on a contract, memorandum of understanding, or other agreement with a requestor. The college may waive charges assessed for records when the public records officer determines collecting a fee is not cost effective.
AMENDATORY SECTION (Amending Order 1-75, filed 11/10/75)
WAC 132M-110-100 Exemptions.
(((1) The college reserves the right to determine that a public record requested in accordance with the procedures outlined in WAC 132M-110-080 is exempt under the provisions of chapter 42.17 RCW.
(2) In addition, pursuant to RCW 42.17.260, the college reserves the right to delete identifying details when it makes available or publishes any public record, in any case when there is reason to believe that disclosure of such details would be an invasion of personal privacy protected by chapter 42.17 RCW. The records officer and/or his designee will fully justify such deletion in writing.
(3) All denials of requests for public records must be accompanied by a written statement specifying the reason for the denial, including a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld.)) (1) Public Records Act exemptions. There are a number of types of records exempt from public inspection and copying. The college reserves the right to determine that a public record requested in accordance with WAC 132M-110-080, or any portion thereof, is exempt under the Public Records Act.
(2) Other exemptions. Requestors should be aware of the following exemptions, outside the Public Records Act, that restrict the availability of some documents held by the college for inspection and copying. This is not an exhaustive list as numerous exemptions exist outside of the act to an academic setting. The college's failure to list an exemption here shall not affect the efficacy of any exemption.
(a) RCW 5.60.060 - Privileged communications;
(b) 20 U.S.C. 1232g - Family Educational Rights and Privacy Act (FERPA);
(c) 42 U.S.C. 405 (c)(2)(vii)(1) - Social Security numbers;
(d) 45 C.F.R. 16-0164 – HIPPA privacy rule;
(f) Chapter 10.97 RCW - Regarding criminal history information.
(3) Identification of exemptions. A denial of any record, in whole or part, shall include a statement of the specific exemption(s) authorizing the withholding of the record (or portion thereof) and a brief explanation of how the exemption applies to the record of information withheld.
REPEALER
The following sections of the Washington Administrative Code are repealed:
| ||||||||||||||||||