EMPLOYMENT SECURITY DEPARTMENT

[Filed October 16, 2020, 8:08 a.m., effective November 16, 2020]

Effective Date of Rule: Thirty-one days after filing.

Purpose: The employment security department (ESD) is implementing public disclosure and privacy rules in accordance with requirements determined by ESB 5439 (chapter 81, Laws of 2019). The rule making repeals WAC 192-15-101, 192-15-020, 192-15-030, 192-15-040, 192-15-050, 192-15-060, 192-15-070, 192-15-080, 192-15-090, 192-15-100, 192-15-110, 192-15-120, 192-15-130, 192-15-140, 192-15-150, 192-15-160, and 192-15-170 regarding public disclosure and privacy of information. Public record disclosure is the subject of a separate rule making, as filed in WSR 19-18-010.

Citation of Rules Affected by this Order: New WAC 192-15-500, 192-15-510, 192-15-520, 192-15-530, 192-15-540 and 192-15-550; and repealing WAC 192-15-101, 192-15-020, 192-15-030, 192-15-040, 192-15-050, 192-15-060, 192-15-070, 192-15-080, 192-15-090, 192-15-100, 192-15-110, 192-15-120, 192-15-130, 192-15-140, 192-15-150, 192-15-160, and 192-15-170.

Statutory Authority for Adoption: RCW 50.12.010 and 50.12.040 provide general rule-making authority to ESD. RCW 50.13.030 provides the department with specific authority to adopt rules interpreting and implementing chapter 50.13 RCW, Records and information—Privacy and confidentiality.

Adopted under notice filed as WSR 20-15-137 on July 21, 2020.

A final cost-benefit analysis is available by contacting Joshua Dye, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-890-3472, TTY 360-507-9890, relay 711, email rules@esd.wa.gov, website www.esd.wa.gov/newsroom/rulemaking/other/data-privacy.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 6, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 17.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 6, Amended 0, Repealed 17.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: October 12, 2020.

Chapter 192-15 WAC

((PUBLIC DISCLOSURE AND PRIVACY OF INFORMATION))DATA PRIVACY

WAC 192-15-500Purpose.

Interpret and implement the provisions of chapter 50.13 RCW concerning the privacy and confidentiality of information or records held by the employment security department.

WAC 192-15-510Access to records or information by government agencies.

(1) Applications by government agencies for information or records deemed private and confidential by chapter 50.13 RCW shall be made:

(a) To the public records officer as defined in WAC 192-02-020(2); and

(b) Pursuant to WAC 192-02-060.

(2) If the public records officer:

(a) Is reasonably satisfied that the application meets the requirements of RCW 50.13.060, the department will provide access to the information or records.

(b) Is not reasonably satisfied that the application meets the requirements of RCW 50.13.060, the department may refuse to provide access. The department will provide notification of the denial as prescribed in WAC 192-02-130.

(3) The department shall establish procedures for providing records used for detection of fraud by claimants under various social programs administered by government agencies pursuant to RCW 50.13.060(5). Further investigation of department files concerning these individuals may be accomplished only if the normal requirements of RCW 50.13.060 are met.

(4) The term "other official of the agency" as used in RCW 50.13.060 (1)(b) means an employee who has substantial responsibility for the operation of the requesting agency or for one or more of its programs or administrative units.

WAC 192-15-520Response to subpoenas.

An employee called to testify in a judicial or administrative proceeding shall not disclose information or records deemed private and confidential under chapter 50.13 RCW, unless:

(1) The presiding officer makes a finding that the need for the disclosure outweighs any reasons for the privacy and confidentiality of the records or information; or

(2) The employee is responding to a subpoena or other compulsory process containing a finding by the presiding officer that the need for the disclosure outweighs any reasons for the privacy and confidentiality of the records or information.

WAC 192-15-530Access to records—Operation and management.

(1) The department may provide incidental access to private or confidential information and records by private parties who are assisting the department in such areas as data processing and collection of employment security contributions pursuant to RCW 50.13.080.

(2) Persons provided incidental access to private and confidential records:

(a) Are bound by the rules of confidentiality and privacy applicable to departmental employees;

(b) Will be monitored by the department to ensure that private and confidential information or records are being handled correctly; and

WAC 192-15-540Consent to release of records or information.

(1) Consent to release of information or records deemed private and confidential under RCW 50.13.100 shall be liberally interpreted so that the department may release information or records to third parties who supply the department with reasonable written or oral assurances of their identity and the department already has a release on file that meets the requirements of subsection (2) of this section.

(2) The release provided by a third party must include:

(a) Specifically identifying information of the data to be disclosed;

(b) Acknowledgment that department information will be accessed to obtain the information;

(c) The specific purpose or purposes for which the information is sought and a statement that information obtained under the release will only be used for that purpose or purposes;

(d) The parties who may receive the information disclosed;

(e) A written or electronic signature by the individual or employer being represented;

(f) A statement that provides the purpose of the release, which shall be limited to:

(i) Providing a service or benefit to the individual signing the release; or

(ii) Carrying out the administration or evaluation of a public program.

(3) In cases where a certain record contains information about more than one individual or employing unit:

(a) All individuals or employing units concerned must give consent before a record may be released or disclosed to other than the individuals or employing units;

(b) Records for individuals or employing units that give consent may be provided if the records for individuals or employing units that do not give consent are redacted; or

(c) The request may be denied if all individuals and employing units do not provide consent and records are not able to be redacted in order to protect the privacy of individuals or employing units that do not give consent.

(4) An attorney who can provide reasonable written assurance that they represent an interested party, as defined by WAC 192-04-040, in a proceeding before the appeal tribunal or commissioner, may have access to confidential information or records that are material to the issues in that proceeding.

WAC 192-15-550Disclosure related to employment security programs.

Chapter 50.13 RCW shall not be interpreted to prevent the employment security department from:

(1) Disclosing information in carrying out the department's duties under Title 50 RCW or under any other program for which the department is responsible;

(2) Disclosing information to the unemployment insurance agencies of other states when such disclosure relates to the administration of the unemployment insurance law of the requesting state; or

(3) Disclosing information when such disclosure is required by the federal government in connection with or as a condition of funding for a program being administered by the department.

The following sections of the Washington Administrative Code are repealed:

Description of central and field organization of employment security department.

Procedures for obtaining public records—Designation of departmental employees responsible for public records.

Commissioner's review of denials of public records requests.

Access to individual or employing unit records or information by government agencies—RCW 50.13.060.

Response to subpoenas—RCW 50.13.070.

Access to public records for operation and management purposes—RCW 50.13.080.

Consent to release of records or information—RCW 50.13.100.

Disclosure related to employment security programs.

Public records available.

Protection of public records.

Records index—Available material.

Responsible addressee.

WAC 192-15-010	Purpose.
WAC 192-15-020	Definitions.
WAC 192-15-030	Description of central and field organization of employment security department.
WAC 192-15-040	Procedures for obtaining public records—Designation of departmental employees responsible for public records.
WAC 192-15-050	Commissioner's review of denials of public records requests.
WAC 192-15-060	Access to individual or employing unit records or information by government agencies—RCW 50.13.060.
WAC 192-15-070	Response to subpoenas—RCW 50.13.070.
WAC 192-15-080	Access to public records for operation and management purposes—RCW 50.13.080.
WAC 192-15-090	Consent to release of records or information—RCW 50.13.100.
WAC 192-15-100	Disclosure related to employment security programs.
WAC 192-15-110	Public records available.
WAC 192-15-120	Office hours.
WAC 192-15-130	Copying.
WAC 192-15-140	Protection of public records.
WAC 192-15-150	Records index—Available material.
WAC 192-15-160	Responsible addressee.
WAC 192-15-170	Forms.