S-0785.2 SENATE BILL 5784 State of Washington 66th Legislature 2019 Regular Session By Senators Pedersen, Hunt, Salomon, Billig, and Liias 1 AN ACT Relating to records disclosure and retention obligations 2 of the legislative branch; amending RCW 42.56.010, 42.56.040, 3 42.56.060, 42.56.070, 42.56.080, 42.56.120, 42.56.150, 42.56.210, 4 42.56.230, 42.56.250, 42.56.280, 42.56.290, 42.56.520, 42.56.540, 5 42.56.565, 42.56.580, 42.40.020, 40.14.050, 40.14.100, 40.14.110, 6 40.14.120, and 42.56.550; adding a new section to chapter 42.40 RCW; 7 adding a new section to chapter 42.56 RCW; creating a new section; 8 repealing RCW 40.14.130, 40.14.140, 40.14.150, 40.14.160, 40.14.170, 9 40.14.180, and 42.56.560. 10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 11 NEW SECTION. Sec. 1. The legislature finds that democracy 12 functions best when the public knows who influences the government 13 and how government leaders carry out their duties. A free and open 14 media is essential to this. As the original initiative approved by 15 voters in 1972 states, "free and open examination of public records 16 is in the public interest, even though such examination may cause 17 inconvenience or embarrassment to public officials and others." 18 However, the extent of that examination must not be so unlimited 19 that it prevents the creation and vetting of effective policy. As the 20 branch of state government responsible for adoption of budgets, 21 lawmaking, and oversight of the implementation of laws and budgets by p. 1 SB 5784 1 the executive branch, the legislative branch has a unique role in our 2 democracy. The legislature is a branch of government and not an 3 "agency" of the state, which refers in chapter 42.56 RCW to the 4 executive branch agencies and local governments. The purpose of this 5 act is to guarantee public access to legislative information without 6 compromising the legislature's ability to produce the best possible 7 public policy. To that end, this act establishes how the public 8 records act applies to the legislative branch of state government. 9 PART I - RECORDS DISCLOSURE OBLIGATIONS 10 Sec. 101. RCW 42.56.010 and 2017 c 303 s 1 are each amended to 11 read as follows: 12 The definitions in this section apply throughout this chapter 13 unless the context clearly requires otherwise. 14 (1) "Agency" includes all state agencies and all local agencies. 15 "State agency" includes every state office, department, division, 16 bureau, board, commission, or other state agency. "Local agency" 17 includes every county, city, town, municipal corporation, quasi- 18 municipal corporation, or special purpose district, or any office, 19 department, division, bureau, board, commission, or agency thereof, 20 or other local public agency. 21 (2) "Legislative branch" means the senate, the house of 22 representatives, the joint legislative audit and review committee, 23 the joint legislative transportation committee, the legislative 24 evaluation and accountability program committee, the office of 25 legislative support services, the joint legislative systems 26 committee, the statute law committee, the office of the code reviser, 27 the office of the state actuary, the redistricting commission, the 28 legislative ethics board, and any other agency that is subject to the 29 direct control of the senate or the house of representatives. 30 (3) "Person in interest" means the person who is the subject of a 31 record or any representative designated by that person, except that 32 if that person is under a legal disability, "person in interest" 33 means and includes the parent or duly appointed legal representative. 34 (((3))) (4) "Public record" includes any writing containing 35 information relating to the conduct of government or the performance 36 of any governmental or proprietary function prepared, owned, used, or 37 retained by any state or local agency or the legislative branch 38 regardless of physical form or characteristics. ((For the office of p. 2 SB 5784 1 the secretary of the senate and the office of the chief clerk of the 2 house of representatives, public records means legislative records as 3 defined in RCW 40.14.100 and also means the following: All budget and 4 financial records; personnel leave, travel, and payroll records; 5 records of legislative sessions; reports submitted to the 6 legislature; and any other record designated a public record by any 7 official action of the senate or the house of representatives.)) This 8 definition does not include records that are not otherwise required 9 to be retained by the agency and are held by volunteers who: 10 (a) Do not serve in an administrative capacity; 11 (b) Have not been appointed ((by the agency)) to ((an agency)) a 12 board, commission, or internship; and 13 (c) Do not have a supervisory role or delegated agency authority. 14 (((4))) (5) "Writing" means handwriting, typewriting, printing, 15 photostating, photographing, and every other means of recording any 16 form of communication or representation including, but not limited 17 to, letters, words, pictures, sounds, or symbols, or combination 18 thereof, and all papers, maps, magnetic or paper tapes, photographic 19 films and prints, motion picture, film and video recordings, magnetic 20 or punched cards, discs, drums, diskettes, sound recordings, and 21 other documents including existing data compilations from which 22 information may be obtained or translated. 23 Sec. 102. RCW 42.56.040 and 2012 c 117 s 127 are each amended to 24 read as follows: 25 (1) Each state agency shall separately state and currently 26 publish in the Washington Administrative Code ((and)), each local 27 agency shall prominently display and make available for inspection 28 and copying at the central office of such local agency, and the 29 legislature shall publish in a prominent place on its web site, for 30 guidance of the public: 31 (a) Descriptions of its central and field organization and the 32 established places at which, the employees from whom, and the methods 33 whereby, the public may obtain information, make submittals or 34 requests, or obtain copies of agency or legislative branch decisions; 35 (b) Statements of the general course and method by which its 36 operations are channeled and determined, including the nature and 37 requirements of all formal and informal procedures available; 38 (c) Rules of procedure; p. 3 SB 5784 1 (d) Substantive rules of general applicability adopted as 2 authorized by law, and statements of general policy or 3 interpretations of general applicability formulated and adopted by 4 the agency or legislative branch; and 5 (e) Each amendment or revision to, or repeal of any of the 6 foregoing. 7 (2) Except to the extent that he or she has actual and timely 8 notice of the terms thereof, a person may not in any manner be 9 required to resort to, or be adversely affected by, a matter required 10 to be published or displayed and not so published or displayed. 11 Sec. 103. RCW 42.56.060 and 1992 c 139 s 11 are each amended to 12 read as follows: 13 No public agency, public official, public employee, or custodian, 14 nor the legislative branch, shall be liable, nor shall a cause of 15 action exist, for any loss or damage based upon the release of a 16 public record if the public agency, public official, public employee, 17 or custodian, or the legislative branch acted in good faith in 18 attempting to comply with the provisions of this chapter. 19 Sec. 104. RCW 42.56.070 and 2017 c 304 s 1 are each amended to 20 read as follows: 21 (1) Each agency and the legislative branch, in accordance with 22 published rules, shall make available for public inspection and 23 copying all public records, unless the record falls within the 24 specific exemptions of subsection (8) of this section, this chapter, 25 or other statute which exempts or prohibits disclosure of specific 26 information or records. To the extent required to prevent an 27 unreasonable invasion of personal privacy interests protected by this 28 chapter, an agency or the legislative branch shall delete identifying 29 details in a manner consistent with this chapter when it makes 30 available or publishes any public record; however, in each case, the 31 justification for the deletion shall be explained fully in writing. 32 (2) For informational purposes, each agency and the legislative 33 branch shall publish and maintain a current list containing every 34 law, other than those listed in this chapter, that the agency or 35 legislative branch believes exempts or prohibits disclosure of 36 specific information or records of the agency or legislative branch. 37 An agency's or the legislative branch's failure to list an exemption 38 shall not affect the efficacy of any exemption. p. 4 SB 5784 1 (3) Each local agency shall maintain and make available for 2 public inspection and copying a current index providing identifying 3 information as to the following records issued, adopted, or 4 promulgated after January 1, 1973: 5 (a) Final opinions, including concurring and dissenting opinions, 6 as well as orders, made in the adjudication of cases; 7 (b) Those statements of policy and interpretations of policy, 8 statute, and the Constitution which have been adopted by the agency; 9 (c) Administrative staff manuals and instructions to staff that 10 affect a member of the public; 11 (d) Planning policies and goals, and interim and final planning 12 decisions; 13 (e) Factual staff reports and studies, factual consultant's 14 reports and studies, scientific reports and studies, and any other 15 factual information derived from tests, studies, reports, or surveys, 16 whether conducted by public employees or others; and 17 (f) Correspondence, and materials referred to therein, by and 18 with the agency relating to any regulatory, supervisory, or 19 enforcement responsibilities of the agency, whereby the agency 20 determines, or opines upon, or is asked to determine or opine upon, 21 the rights of the state, the public, a subdivision of state 22 government, or of any private party. 23 (4) A local agency need not maintain such an index, if to do so 24 would be unduly burdensome, but it shall in that event: 25 (a) Issue and publish a formal order specifying the reasons why 26 and the extent to which compliance would unduly burden or interfere 27 with agency operations; and 28 (b) Make available for public inspection and copying all indexes 29 maintained for agency use. 30 (5) Each state agency shall, by rule, establish and implement a 31 system of indexing for the identification and location of the 32 following records: 33 (a) All records issued before July 1, 1990, for which the agency 34 has maintained an index; 35 (b) Final orders entered after June 30, 1990, that are issued in 36 adjudicative proceedings as defined in RCW 34.05.010 and that contain 37 an analysis or decision of substantial importance to the agency in 38 carrying out its duties; 39 (c) Declaratory orders entered after June 30, 1990, that are 40 issued pursuant to RCW 34.05.240 and that contain an analysis or p. 5 SB 5784 1 decision of substantial importance to the agency in carrying out its 2 duties; 3 (d) Interpretive statements as defined in RCW 34.05.010 that were 4 entered after June 30, 1990; and 5 (e) Policy statements as defined in RCW 34.05.010 that were 6 entered after June 30, 1990. 7 Rules establishing systems of indexing shall include, but not be 8 limited to, requirements for the form and content of the index, its 9 location and availability to the public, and the schedule for 10 revising or updating the index. State agencies that have maintained 11 indexes for records issued before July 1, 1990, shall continue to 12 make such indexes available for public inspection and copying. 13 Information in such indexes may be incorporated into indexes prepared 14 pursuant to this subsection. State agencies may satisfy the 15 requirements of this subsection by making available to the public 16 indexes prepared by other parties but actually used by the agency in 17 its operations. State agencies shall make indexes available for 18 public inspection and copying. State agencies may charge a fee to 19 cover the actual costs of providing individual mailed copies of 20 indexes. 21 (6) A public record may be relied on, used, or cited as precedent 22 by an agency against a party other than an agency and it may be 23 invoked by the agency for any other purpose only if: 24 (a) It has been indexed in an index available to the public; or 25 (b) Parties affected have timely notice (actual or constructive) 26 of the terms thereof. 27 (7) Each agency and the legislative branch may establish, 28 maintain, and make available for public inspection and copying a 29 statement of the actual costs that it charges for providing 30 photocopies or electronically produced copies, of public records and 31 a statement of the factors and manner used to determine the actual 32 costs. Any statement of costs may be adopted by an agency only after 33 providing notice and public hearing. 34 (a)(i) In determining the actual cost for providing copies of 35 public records, an agency or the legislative branch may include all 36 costs directly incident to copying such public records including: 37 (A) The actual cost of the paper and the per page cost for use of 38 agency or legislative branch copying equipment; and p. 6 SB 5784 1 (B) The actual cost of the electronic production or file transfer 2 of the record and the use of any cloud-based data storage and 3 processing service. 4 (ii) In determining other actual costs for providing copies of 5 public records, an agency or the legislative branch may include all 6 costs directly incident to: 7 (A) Shipping such public records, including the cost of postage 8 or delivery charges and the cost of any container or envelope used; 9 and 10 (B) Transmitting such records in an electronic format, including 11 the cost of any transmission charge and use of any physical media 12 device provided by the agency or the legislative branch. 13 (b) In determining the actual costs for providing copies of 14 public records, an agency or the legislative branch may not include 15 staff salaries, benefits, or other general administrative or overhead 16 charges, unless those costs are directly related to the actual cost 17 of copying the public records. Staff time to copy and send the 18 requested public records may be included in an agency's or the 19 legislative branch's costs. 20 (8) This chapter shall not be construed as giving authority to 21 any agency((, the office of the secretary of the senate, or the 22 office of the chief clerk of the house of representatives)) or the 23 legislative branch to give, sell or provide access to lists of 24 individuals requested for commercial purposes, and agencies((, the 25 office of the secretary of the senate, and the office of the chief 26 clerk of the house of representatives)) and the legislative branch 27 shall not do so unless specifically authorized or directed by law: 28 PROVIDED, HOWEVER, That lists of applicants for professional licenses 29 and of professional licensees shall be made available to those 30 professional associations or educational organizations recognized by 31 their professional licensing or examination board, upon payment of a 32 reasonable charge therefor: PROVIDED FURTHER, That such recognition 33 may be refused only for a good cause pursuant to a hearing under the 34 provisions of chapter 34.05 RCW, the administrative procedure act. 35 Sec. 105. RCW 42.56.080 and 2017 c 304 s 2 are each amended to 36 read as follows: 37 (1) A public records request must be for identifiable records. A 38 request for all or substantially all records prepared, owned, used, 39 or retained by an agency is not a valid request for identifiable p. 7 SB 5784 1 records under this chapter, provided that a request for all records 2 regarding a particular topic or containing a particular keyword or 3 name shall not be considered a request for all of an agency's 4 records. For the legislative branch, a request for all or 5 substantially all records prepared, owned, used, or retained by the 6 legislative branch, a legislative chamber or agency, a legislative 7 caucus, or an individual legislator, is not a valid request for 8 identifiable records under this chapter, unless that request is 9 regarding a particular topic. 10 (2) Public records shall be available for inspection and copying, 11 and agencies and the legislative branch shall, upon request for 12 identifiable public records, make them promptly available to any 13 person including, if applicable, on a partial or installment basis as 14 records that are part of a larger set of requested records are 15 assembled or made ready for inspection or disclosure. Agencies and 16 the legislative branch shall not deny a request for identifiable 17 public records solely on the basis that the request is overbroad. 18 Agencies and the legislative branch shall not distinguish among 19 persons requesting records, and such persons shall not be required to 20 provide information as to the purpose for the request except to 21 establish whether inspection and copying would violate RCW 22 42.56.070(8) or 42.56.240(14), or other statute which exempts or 23 prohibits disclosure of specific information or records to certain 24 persons. Agency and legislative branch facilities shall be made 25 available to any person for the copying of public records except when 26 and to the extent that this would unreasonably disrupt the operations 27 of the agency or the legislative branch. Agencies and the legislative 28 branch shall honor requests received in person during an agency's 29 normal office hours, or by mail or email, for identifiable public 30 records unless exempted by provisions of this chapter. No official 31 format is required for making a records request; however, agencies 32 and the legislative branch may recommend that requestors submit 33 requests using an agency provided form or web page. 34 (3) An agency or the legislative branch may deny a bot request 35 that is one of multiple requests from the requestor to the agency or 36 legislative branch within a twenty-four hour period, if the agency or 37 legislative branch establishes that responding to the multiple 38 requests would cause excessive interference with other essential 39 functions of the agency or legislative branch. For purposes of this 40 subsection, "bot request" means a request for public records that an p. 8 SB 5784 1 agency or the legislative branch reasonably believes was 2 automatically generated by a computer program or script. 3 Sec. 106. RCW 42.56.120 and 2017 c 304 s 3 are each amended to 4 read as follows: 5 (1) No fee shall be charged for the inspection of public records 6 or locating public documents and making them available for copying, 7 except as provided in RCW 42.56.240(14) and subsection (3) of this 8 section. A reasonable charge may be imposed for providing copies of 9 public records and for the use by any person of agency equipment or 10 equipment of the ((office of the secretary of the senate or the 11 office of the chief clerk of the house of representatives)) 12 legislative branch to copy public records, which charges shall not 13 exceed the amount necessary to reimburse the agency((, the office of 14 the secretary of the senate, or the office of the chief clerk of the 15 house of representatives)) or the legislative branch for its actual 16 costs directly incident to such copying. When calculating any fees 17 authorized under this section, an agency or the legislative branch 18 shall use the most reasonable cost-efficient method available to the 19 agency or legislative branch as part of its normal operations. If any 20 agency or the legislative branch translates a record into an 21 alternative electronic format at the request of a requestor, the copy 22 created does not constitute a new public record for purposes of this 23 chapter. Scanning paper records to make electronic copies of such 24 records is a method of copying paper records and does not amount to 25 the creation of a new public record. 26 (2)(a) Agency or legislative branch charges for actual costs may 27 ((only)) be imposed only in accordance with the costs established and 28 published by the agency or legislative branch pursuant to RCW 29 42.56.070(7), and in accordance with the statement of factors and 30 manner used to determine the actual costs. In no event may an agency 31 or the legislative branch charge a per page cost greater than the 32 actual cost as established and published by the agency or legislative 33 branch. 34 (b) An agency or the legislative branch need not calculate the 35 actual costs it charges for providing public records if it has rules 36 or regulations declaring the reasons doing so would be unduly 37 burdensome. To the extent the agency or the legislative branch has 38 not determined the actual costs of copying public records, the agency 39 or legislative branch may not charge in excess of: p. 9 SB 5784 1 (i) Fifteen cents per page for photocopies of public records, 2 printed copies of electronic public records when requested by the 3 person requesting records, or for the use of agency or legislative 4 branch equipment to photocopy public records; 5 (ii) Ten cents per page for public records scanned into an 6 electronic format or for the use of agency or legislative branch 7 equipment to scan the records; 8 (iii) Five cents per each four electronic files or attachment 9 uploaded to email, cloud-based data storage service, or other means 10 of electronic delivery; and 11 (iv) Ten cents per gigabyte for the transmission of public 12 records in an electronic format or for the use of agency or 13 legislative branch equipment to send the records electronically. The 14 agency or legislative branch shall take reasonable steps to provide 15 the records in the most efficient manner available to the agency in 16 its normal operations; and 17 (v) The actual cost of any digital storage media or device 18 provided by the agency or legislative branch, the actual cost of any 19 container or envelope used to mail the copies to the requestor, and 20 the actual postage or delivery charge. 21 (c) The charges in (b) of this subsection may be combined to the 22 extent that more than one type of charge applies to copies produced 23 in response to a particular request. 24 (d) An agency or the legislative branch may charge a flat fee of 25 up to two dollars for any request as an alternative to fees 26 authorized under (a) or (b) of this subsection when the agency or 27 legislative branch reasonably estimates and documents that the costs 28 allowed under this subsection are clearly equal to or more than two 29 dollars. An additional flat fee shall not be charged for any 30 installment after the first installment of a request produced in 31 installments. An agency or the legislative branch that has elected to 32 charge the flat fee in this subsection for an initial installment may 33 not charge the fees authorized under (a) or (b) of this subsection on 34 subsequent installments. 35 (e) An agency or the legislative branch shall not impose copying 36 charges under this section for access to or downloading of records 37 that the agency or legislative branch routinely posts on its public 38 internet web site prior to receipt of a request unless the requestor 39 has specifically requested that the agency or legislative branch 40 provide copies of such records through other means. p. 10 SB 5784