WSR 19-03-115
[Filed January 16, 2019, 2:34 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-17-092 [17-17-094].
Title of Rule and Other Identifying Information: To Implement HB [ESHB] 1594 and [EHB] 1595 to allow consolidated technology services (CTS) to charge fees for production of records and adopt the schedule of costs laid out in RCW 42.56.120, as amended.
Hearing Location(s): On February 26, 2019, at 8-9 a.m., at 1500 Jefferson Street, Conference Room 2331.
Date of Intended Adoption: February 27, 2019.
Submit Written Comments to: Rebekah O'Hara, Rules Coordinator, 1500 Jefferson Street S.E., Olympia, WA 98504, email, by February 19, 2019.
Assistance for Persons with Disabilities: Contact Rebekah O'Hara, phone 360-407-8818, email, by February 19, 2019.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The agency is amending its rules relating to public records to confirm [conform] with EHB 1595 (65th legislature, 2017 regular session) and to make other updates relating to data ownership and electronic production of records.
Reasons Supporting Proposal: The Public Records Act is at chapter 42.56 RCW. The 2017 legislature amended RCW 42.56.120 at section 3, chapter 304, Laws of 2017, to require that effective July 23, 2107 [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. CTS is not calculating actual costs for copying records because to do so would be unduly burdensome for the reasons specified in its proposed emergency rule. CTS is adopting the rule on a permanent basis so it can continue to use the statutory default copy fee schedule. In addition, RCW 42.56.120 as amended by section 3, chapter 304, Laws of 2017 allows an agency to waive any charge assessed for a public record pursuant to agency rule. The emergency rule also describes the circumstances under which the office will waive copying fees.
Statutory Authority for Adoption: RCW 42.56.100, 42.56.040 (1)(d), 42.56.120, 43.10.110.
Statute Being Implemented: RCW 42.56.120.
Rule is not necessitated by federal law, federal or state court decision.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Rebekah O'Hara, 1500 Jefferson Street, Olympia, WA 98504, 360-407-8818.
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 [review] committee has not made the 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 42.56.070, 42.56.120.
Explanation of exemptions: o [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, 42.56.12 [42.56.120].
January 16, 2019
Rebekah O'Hara
Chief Legal Services Officer
WAC 143-06-170Calculations of action costs of producing copies of public records declared to be unduly burdensomeAdoption of statutory fee schedule.
(1) Consolidated Technology Services has deemed the actual calculation of costs to the agency for producing responsive records to a public records request is unduly burdensome, because:
a) The office does not have the resources to conduct a study to determine all its actual copying costs;
b) staff resources are insufficient to perform a study and to calculate such actual costs
c) funds were not allocated for performing a study to calculate such actual costs and the agency lacks the necessary funds to perform a study and calculations;
d) to conduct such a study would interfere with other essential agency functions
e) through the 2017 legislative process, the public and requesters have commented on and been informed of authorized fees and costs, including for electronic records, provided in RCW 42.56.120 (2)(b) and (c), (3) and (4).
As such, Consolidated Technology Services shall charge for copies of records pursuant to the default fees in RCW 42.56.120 (2)(b) and (c). Consolidated Technology Services will charge for customized services pursuant to 42.56.120(3). Under RCW 42.56.130, Consolidated Technology Services may charge other copy fees authorized by statutes outside of chapter 42.56 RCW. Consolidated Technology Services may enter into an alternative fee agreement with a requester under RCW 42.56.120(4).
(2) This fee schedule will be set forth on the Consolidated Technology Services Agency website and be updated with subsequent changes to RCW 42.56 or further Consolidated Technology rule-making.
(3) Consolidated Technology Services may include a customized service charge for certain public records requests. Requests that require the use of information technology expertise to prepare data compilations, or provide customize electronic access services when such customized access services are not used by the agency. The customized service charge may reimburse Consolidated Technology Services up to the actual cost of providing these services.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
WAC 143-06-180Fee waivers
Requesters are required to pay for copies in advance of receiving records. Fee waivers are an exception and are available for some small requests under the following conditions.
(1) It is within the discretion of the public records officer to waive copying fees when: (a) all of the records responsive to an entire request are paper copies only and are twenty-five or fewer pages; or (b) 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 100 printed pages. If that email for any reason is not deliverable, records will be provided through another means of delivery, and the requester will be charged in accordance with this rule.
(2) Fee waivers are not applicable to records provided in installments.
WAC 143-06-190Requestor fees and deposits
Consolidated Technology Services shall 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.
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. Consolidated Technology Services will notify the requester of when payment is due.
The following section of the Washington Administrative Code is repealed:
WAC 143-06-090
AMENDATORY SECTION(Amending WSR 00-01-028, filed 12/7/99, effective 1/7/00)
WAC 143-06-160Records in possession of data processing service centers.
No public records of users of department services shall be made available for public inspection or copying by the department without the express written authorization of the user.
Requests for inspection or copying of public records of the user, held or maintained by the center, shall be referred to the user for determination as to the right of public access to such records, pursuant to chapter 42.1756 RCW. Costs incurred by the department in providing access to or copies of public records of the user pursuant to chapter 42.17 RCW shall be paid by the user.
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.