Drafter
Clerk 05/28/2009
Title
AN ORDINANCE relating to public records and records retention; amending Ordinance 10698, Section 3, and K.C.C. 2.12.005, Ordinance 695, Section 1, and K.C.C. 2.12.010, Ordinance 695, Section 2, as amended, and K.C.C. 2.12.020, Ordinance 10698, Section 2, and K.C.C. 2.12.035, Ordinance 12485, Section 4, and K.C.C. 2.12.040, Ordinance 3606, Section 4, as amended, and K.C.C. 2.12.060, Ordinance 134 (part) and K.C.C. 2.12.070, Ordinance 5962, Section 2, as amended, and K.C.C. 2.12.080, Ordinance 1660, Sections 1-2, as amended, and K.C.C. 2.12.120 and Ordinance 9168, Section 2, as amended, and K.C.C. 2.12.170, adding new sections to K.C.C. chapter 2.12, recodifying K.C.C. 2.12.160 and repealing Ordinance 3606, Section 3, and K.C.C. 2.12.050, Ordinance 3606, Section 5, and K.C.C. 2.12.090, Ordinance 3606, Section 6, as amended, and K.C.C. 2.12.110, Ordinance 12485, Section 3, and K.C.C. 2.12.115, Ordinance 14266, Section 12, and K.C.C. 2.12.190 and Ordinance 2165, Section 5, as amended, and K.C.C. 2.12.200.
Body
STATEMENT OF FACTS:
1. Initiative 276, passed by the voters in 1972, states in part:
"It is hereby declared by the sovereign people to be the public policy of the state of Washington: . . . (11) That mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society."
2. The policy in Initiative 276 was adopted by the Legislature in 1992:
"The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. The public records subdivision of this chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy." RCW 42.56.030.
3. In 2005, the legislature recodified the public records act and also directed the attorney general to adopt advisory model rules to assist requestors and agencies in the public records process.
4. In January 2006, the attorney general promulgated model rules for the public records act, chapter 44-14 WAC.
5. K.C.C. chapter 2.12 contains the county's policies relating to public records.
BE IT ORDAINED BY THE COUNCIL OF KING COUNTY:
SECTION 1. Ordinance 10698, Section 3, and K.C.C. 2.12.005 are each hereby amended to read as follows:
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
A.1. (("County records" means any document including any paper, correspondence, completed form, bound records book, photograph, film, sound or video recording, map, drawing, machine-readable material, or other document, regardless of physical form or characteristics, and including copies thereof, that have been made by or received by any agency of King County in connection with the transaction of public business.)) "Agency" means:
a. the executive branch;
b. the legislative branch;
c. the department of public safety;
d. the department of assessments;
e. the office of the prosecuting attorney;
f. the department of elections;
g. the forecast council and office of economic and financial analysis;
h. the board of appeals; and
i. the personnel board.
2. "Agency" does not include the superior court or the district court.
B. "Archival records" ((are)) means those designated as having continuing historical value by the Washington State Archives or the King County archivist.
C. "County records" means any document, including any paper, correspondence, completed form, bound records book, photograph, film, sound or video recording, map, drawing, machine-readable material or other document, regardless of physical form or characteristics, and including copies thereof, that has been made by or received by any agency of King County in connection with the transaction of public business.
D. "Executive branch" means the executive branch as defined in the county charter, but excluding the department of public safety, the department of assessments and the department of elections.
E. "Legislative branch" means the legislative branch as defined in the county charter and as provided by ordinance, including, but not limited to, the county council and the offices of the county auditor, citizen complaints, the hearing examiner and law enforcement oversight.
F. "Official record" means a public record that an agency is required by law to accept or maintain, including, but not limited to, recorded documents, judgments, licenses, vital statistics and property records.
G. "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.
H. "Public records officer" means the person appointed by the agency in accordance with section 20.A. of this ordinance.
SECTION 2. Ordinance 695, Section 1, and K.C.C. 2.12.010 are each hereby amended as follows:
((The responsibility for preparation of permanent records of the proceedings of the King County council as required of the former county auditor by RCW 36.32.110 is defined by the County Home Rule Charter , Sections 220.30 and 220.40 to rest with staff established by the council.)) The clerk of the council ((administrator, as established by the 1971 Appropriations Ordinance,)) is ((the employee)) responsible for the preparation of permanent records of the council proceedings.
SECTION 3. Ordinance 695, Section 2, as amended, and K.C.C. 2.12.020 are each hereby amended to read as follows:
All records of the King County council and records of the King County commissioners, ((prior to the establishment of the Home Rule Charter, other than)) including office files and memoranda, shall be ((either photographed, microphotographed, photostated or reproduced on film by the records and elections division)) transferred to the King County archives for permanent retention in accordance with the applicable records retention schedules.
SECTION 4. Ordinance 10698, Section 2, and K.C.C. 2.12.035 are each hereby amended as follows:
A. An archives and records management program is hereby established in the records and ((elections)) licensing services division of the department of executive services. The archives and records management program shall be responsible for:
((A.)) 1. Maintaining a facility for storage of inactive and archival records((.));
((B.)).2. Establishing standards for records storage media to ensure continued public access to public records during their legal retention period and for preservation of archival ((information.)) records;
((C.)) 3. Maintaining ((a directory to)) records retention schedules of current records of county agencies, which shall serve as ((a)) the public ((disclosure)) records index as set forth in ((RCW 42.17)) chapter 42.56 RCW. A directory of historical, noncurrent or obsolete records designated archival shall serve as an index to King County administrative history, as provided by ((RCW)) chapter 40.14((.)) RCW; and
((D.)) 4. Preserving and providing public access to the archival records of King County.
B. The King County archives is designated as the official repository of the county's archival records. The King County archives may transfer the county's archival records to the Washington state archives for ongoing preservation.
SECTION 5. Ordinance 12485, Section 4, and K.C.C. 2.12.040 are each hereby amended to read as follows:
((Archives and records management shall be charged with the task of coordinating)) The department of executive services is responsible for maintaining ((a R))records ((R))retention and ((P))public ((D))disclosure ((M))manuals. ((This)) The manuals shall include ((identifying and describing)) each ((county)) agency's record retention schedules ((and public disclosure designation)). ((Upon its completion, this)) The manuals shall be made available to the public by electronic means ((and in paper form)).
SECTION 6. Ordinance 3606, Section 3, and K.C.C. 2.12.050 are each repealed.
SECTION 7. Ordinance 3606, Section 4, as amended, and K.C.C. 2.12.060 are each hereby amended to read as follows:
Retention of ((all county records, both)) public ((and)) records, including official records, shall be in accordance with approved records retention schedules established pursuant to RCW 40.14.070. In accordance with those records retention schedules, ((T))the archives and records management program shall provide for the legal retention and disposition ((policy for county)) of public records, including identification of archival records.
SECTION 8. Ordinance 134 (part) and K.C.C. 2.12.070 are each hereby amended to read as follows:
Copies of the annual King County budget shall be available from the office of ((the county administrator and shall be furnished to interested persons)) management and budget upon payment of ((a minimal fee in the amount of)) five dollars for each copy ((thereof)), which fee shall be paid to the King County treasurer. The county executive shall make available to the public on the county's website, at no charge, an electronic copy of the budget ordinance.
SECTION 9. Ordinance 5962, Section 2, as amended, and K.C.C. 2.12.080 are each hereby amended to read as follows:
The records((, elections)) and licensing services division may sell printed copies of the King County code to subscribers other than county agencies or departments for a fee of three hundred dollars plus an additional charge of fifteen cents per page for quarterly supplements. The clerk of the council shall make available to the public on the county's website at no charge an electronic version of the code, updated at least annually.
SECTION 10. Ordinance 3606, Section 5, and K.C.C. 2.12.090 are each repealed.
SECTION 11. Ordinance 3606, Section 6, as amended, and K.C.C. 2.12.110 are each repealed.
SECTION 12. Ordinance 12485, Section 3, and K.C.C. 2.12.115 are each repealed.
SECTION 13. Ordinance 1660, Sections 1-2, and K.C.C. 2.12.120 are each hereby amended to read as follows:
The manager of the records((, elections)) and licensing services division shall charge such fees for the provision of recording services as are provided for county auditors in chapters 36.18 and 36.22 RCW and RCW ((64.34.202)) 58.24.070. In addition, the following specific fees apply:
A. Record of survey. As authorized under RCW 58.09.100, ((F))for land surveys, which shall be eighteen by twenty-four inches or less in size, the fee schedule is:
1. Basic fee for first page $25.00
2. ((Department of natural resources fees $26.00
3. Centennial preservation fee $2.00))
4. State archives fee $1.00
5.)) Each additional page $5.00
B. ((Short plats and boundary line adjustments.)) For short plats and boundary line ajustments, legal size or smaller, the manager of the records((, elections)) and licensing services division shall charge such fees as are provided for county auditors in chapter 36.18 RCW. For short plats and boundary line adjustments, eighteen by twenty-four inches or less in size, the fee schedule shall be the same as record of survey under ((K.C.C. 2.12.120)) subsection A. of this section.
C. ((Record of monument.)) The record of monument shall be filed without charge on the standard form prescribed by the state Department of Natural Resources, Bureau of Surveys and Maps.
D. ((Reservation of condominium name.)) As authorized under RCW 64.34.202, ((T))to reserve the right to use a specific name for a condominium, the fee is fifty dollars. ((A reservation is subject to RCW 64.34.202.
E. Administrative surcharge. As authorized by 2002 Wash. Laws Chapter 294, five percent of the mandatory state ten-dollar surcharge on recorded instruments shall be retained as an administrative surcharge effective June 13, 2002. Of the remaining funds, forty percent shall be transmitted monthly to the state treasurer and the remaining sixty percent shall be retained by the county and deposited into a fund to be used by the county and its cities for low-income housing initiatives.
F. Administrative fee. As authorized by 2003 Wash. Laws 289, five percent of the mandatory one-dollar state surcharge on recorded deeds of trust shall be retained as an administrative fee.))
SECTION 14. K.C.C. 2.12.160 shall be recodifed in K.C.C. chapter 4.08.
SECTION 15. Ordinance 9168, Section 2, as amended, and K.C.C. 2.12.170 are each hereby amended to read as follows:
A. There is established within the records and ((elections)) licensing services division an enhanced program for preserving, copying, maintaining((,)) and indexing documents officially recorded and filed with the county that require preservation in the public interest against age and environmental degradation before they are irreparably damaged. The program shall take advantage of the latest technology for records preservation to include, but not limited to, photomicrographic and computerized electronic digital storage methods.
B. To support the program, the manager of the records and licensing services ((manager)) division shall collect the ((two dollar fee provided by state law as amended)) fee authorized under RCW 36.22.170 for each document recorded in the recorder's office, which shall be in addition to any other authorized fee or charge. ((C.)) The fee ((of two dollars)) shall be used for only those purposes outlined by state law as amended, that is, to provide for the installation and maintenance of an improved system for copying, preserving and indexing documents recorded in King County and for the preservation of those records deemed archival.
SECTION 16. Ordinance 14266, Section 12, and K.C.C. 2.12.190 are each repealed.
SECTION 17. Ordinance 2165, Section 5, as amended, and K.C.C. 2.12.200 are each repealed.
NEW SECTION. SECTION 18. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. The county adopts the rules on records in sections 19, 20, 21, 22, 23, 24 and 25 of this ordinance, which are based on chapter 44-14 WAC. However, chapter 44-14 WAC and its comments are not adopted.
B. These rules may also be further clarified and implemented by each agency to the extent that the clarifications do not conflict with state law.
C. King County is a political subdivision of the state of Washington and is a home rule charter county composed of multiple agencies.
NEW SECTION. SECTION 19. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. RCW 42.56.070(1) requires each agency to make available for inspection and copying nonexempt "public records" in accordance with published rules. Chapter 42.56 RCW 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.
B. The purpose of this chapter is to establish the procedures the county will follow in order to provide full access to public records that are not exempt from disclosure under applicable law. This chapter provides information to persons wishing to request access to public records of the county and establish processes for both requestors and county staff that are designed to best assist members of the public in obtaining such access.
C. The purpose of chapter 42.56 RCW is to provide the public full access to records concerning the conduct of government that are not exempt from disclosure under applicable law, mindful of individuals' privacy rights and the desirability of the efficient administration of government. Chapter 42.56 RCW and this chapter will be interpreted in favor of disclosure. In carrying out its responsibilities under chapter 42.56 RCW, the county will be guided by the provisions of the act describing its purposes and interpretation.
NEW SECTION. SECTION 20. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. Each agency shall appoint a public records officer and shall identify the officer in a way reasonably calculated to provide notice to the public, including posting, at the agency's public service counters, if any, and on its website, the officer's name, office address, telephone number, fax number and email address. Each agency shall include on its website home page a link to the web page on which the agency provides this contact information and instructions on how to make a public records request.
B. Any person wishing to request access to public records of an agency, or seeking assistance in making such a request, should contact the public records officer of the agency. A request to one agency does not constitute a request to any other agency. A separate request must be made to each agency from which access to public records is requested or assistance in making such a request is sought.
C. The public records officer, or the public records officer's designee, for each agency shall oversee compliance by the agency with chapter 42.56 RCW. The agency shall:
1. Provide the fullest assistance to requestors;
2. Provide education and training within an agency to ensure that public records are protected from damage or disorganization and are promptly produced for inspection and copying upon request to the extent required by law; and
3. Prevent fulfillment of public records requests from causing excessive interference with essential functions of the agency or unreasonably disrupting the operations of the agency.
NEW SECTION. SECTION 21. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. Public records are available for inspection and copying during normal business hours of the agency, or department thereof. Original records must be inspected at the offices of the agency, unless the agency provides an alternative.
B. An index of public records of each agency is available through the archives and records management program established under K.C.C. 2.12.035. The index may be accessed online at the archive and records management program's website.
C.1. An agency shall maintain its records in a reasonably organized manner. An agency should take reasonable actions to protect records from damage and disorganization.
2. A requestor shall not take an agency's records from the agency's offices.
3. A variety of records is available on the county website at www.kingcounty.gov. Requestors are encouraged to view the documents available on the website before submitting a records request.
D.1. A person wishing to inspect or copy public records of an agency is encouraged to make the request in writing on the agency's request form, which shall be created and maintained by the agency's public records officer and made available on the agency's website. The agency request form shall:
a. recite that inspection of records is free, provide the per-page charge for standard photocopies and indicate that the requestor may inspect the records, receive a copy of the records or inspect the records first and then select records to copy;
b. prompt the requestor to provide contact information including name, phone number, mailing address and email address if available;
c. prompt the requestor to identify the public records adequately for the public records officer or designee to locate the records; and
d. prompt the requestor to provide the date and time of day of the request.
2. If a request is made orally, unless it is promptly fulfilled, the public records officer shall provide written confirmation of the request to the requester.
3. 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. Charges for copies shall be made in accordance with RCW 42.56.070.
NEW SECTION. SECTION 22. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. Each agency shall provide full access to public records that are not exempt from disclosure under applicable law, protect records from damage or disorganization, prevent excessive interference with other essential functions of the agency, provide fullest assistance to requestors and provide the most-timely possible action on public records requests.
B. The public records officer or designee shall process requests in the order allowing the most requests to be processed in the most efficient manner; in order to process requests as efficiently as possible, smaller requests may be processed before substantially larger requests that were received earlier.
C.1. Within five business days of receipt of the request, the public records officer shall do one or more of the following:
a. make the records available to the requestor 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 to the requestor a reasonable estimate of when records will be available;
d. if the request is unclear or does not sufficiently identify the requested records, request clarification from the requestor. The clarification may be requested and provided by telephone, in which case the public records officer shall make a written record of the clarification. The public records officer or designee may revise the estimate of when records will be available. If the requestor fails to clarify the request, the agency need not respond to it; or
e. deny the request and notify the requestor of the denial. Denials of requests shall be accompanied by a written statement of the specific reasons therefor.
2. Additional time required to respond to a request may be based upon the need to clarify the intent of the request, to locate and assemble the information requested, to notify third persons or agencies affected by the request or to determine whether any of the information requested is exempt and that a denial should be made as to all or part of the request.
D. In the event that the requested records contain information that affects other agencies or third persons, the public records officer may, before providing the records, give notice to those persons in accordance with RCW 42.56.540. The notice shall include a copy of the request.
E. Some records are exempt from disclosure, in whole or in part. If the agency believes that a record or any part of a record is exempt from disclosure and should be withheld, the public records officer shall provide to the requestor a writing identifying the record or portion withheld, the specific exemption relied upon and the authority for the exemption, and briefly explaining how the exemption applies to the record or portion withheld, including enough information for a requestor to make a threshold determination of whether the claimed exemption is proper. If only a portion of a record is exempt from disclosure, but the remainder is not exempt, the public records officer shall redact the exempt portions and provide the nonexempt portions.
F.1. The agency shall promptly provide space to inspect public records except when and to the extent that it would cause excessive interference with other essential functions of the agency or unreasonably disrupt agency operations. 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 the requestor wishes the agency to copy.
2. The requestor must claim or review the assembled records within thirty days of the agency's notification to the requestor that the records are available for inspection or copying. The agency shall notify the requestor in writing of this requirement and inform the requestor that the requestor should contact the agency to make arrangements to claim or review the records. If the requestor or a representative of the requestor fails to claim or review the records within the time prescribed in this subsection F.2. or make other arrangements, the agency may close the request. Other public records requests may be processed ahead of a subsequent request by the same person for the same or almost identical records, which may be processed as a new request.
G. After inspection is complete, the public records officer or designee shall make the requested copies or arrange for copying.
H. When the request is for a large number of records, the public records officer or designee shall provide access for inspection and copying in installments, if the public records officer or designee reasonably determines that it would be practical to provide the records in that way. If, within thirty days after notification that the records are available for inspection or copying under subsection C., D. or E. of this section, the requestor fails to inspect the entire set of records or one or more of the installments, as applicable, the public records officer or designee may stop searching for the remaining records and close the request. The requestor shall be notified in writing of this action.
I. When the requestor either withdraws the request or fails to fulfill his or her obligations to inspect the records or pay the deposit or final payment for the requested copies, the public records officer shall close the request and indicate to the requestor that the agency has closed the request.
J. If, after the agency has informed the requestor that the agency has provided all available records, the agency becomes aware of additional responsive documents existing at the time of the request, the agency shall promptly inform the requestor of the additional documents and provide the documents on an expedited basis.
NEW SECTION. SECTION 23. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. The process for requesting electronic public records is the same as for requesting paper public records.
B. When a requestor requests records in an electronic format, the agency's public records officer shall provide the nonexempt records or portions of those records that are reasonably locatable in an electronic format that is used by the agency and is generally commercially available, or in a format that is reasonably translatable from the format in which the agency keeps the record. Costs for providing electronic records are governed by section 25.B. of this ordinance.
C. The agency may provide customized access under RCW 43.105.280 if the record is not reasonably locatable or not reasonably translatable into the format requested. The agency may charge a fee consistent with RCW 43.105.280 for the customized access.
NEW SECTION. SECTION 24. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. The Public Records Act provides that a number of types of documents are exempt from public inspection and copying. In addition, documents are exempt from disclosure if any other statute exempts or prohibits disclosure. Exemptions outside the Public Records Act that restrict the availability of some documents held by the county or its agencies for inspection and copying include, but are not limited to, those set forth for counties and municipalities in the most-recent list of other such statutes posted on the website of the Municipal Research and Services Center of Washington, which is, as of the effective date of this section, www.mrsc.org/Publications/pra06.pdf, Appendix C, and which is incorporated in this chapter by reference.
B. King County and its agencies are prohibited by statute from disclosing lists of individuals for commercial purposes.
NEW SECTION. SECTION 25. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A.1. There is no fee for inspecting public records. A requestor may obtain copies, for which charges shall be made in accordance with RCW 42.56.070 or other applicable lw. For certified copies, eight and one-half inches by fourteen inches or smaller, for the first page the fee shall be two dollars, and for each additional page the fee shall be one dollar.
2. Before beginning to make the copies, the public records officer or designee may require a deposit of up to ten percent of the estimated costs of copying all the records selected by the requestor. The public records officer or designee may also require the payment of the remainder of the copying costs before providing all the records, or the payment of the costs of copying an installment before providing that installment. The agency shall not charge sales tax when it makes copies of public records.
B. 1. The cost of electronic copies of records shall be the actual cost of the medium used.
2. If the agency incurs a cost of transferring a paper record to electronic form, that cost may be charged.
3. If the agency uses an outside vendor, the vendor's charge to the agency, including applicable sales tax, shall be passed on to the requestor.
C. An agency may also charge actual costs of mailing, including the cost of the shipping container.
D. Payment for the costs under this section may be made to the agency or the agency's designee by cash, check or money order to the agency or its designee.
E. Charges for paper copies of official records shall be in accordance with fees set forth in applicable chapters of the RCW.
F. Charges for copies of material in the archival collection shall follow the guidelines of the Washington state Archives and WAC 434-690-080.
NEW SECTION. SECTION 26. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A. Any person who objects to the initial denial or partial denial of a public records request may petition in writing to the public records officer for a review of the decision. The petition shall include a copy of or reasonably identify the written statement by the public records officer denying the request.
B. The public records officer shall promptly provide the petition and any other relevant information to the public records officer's supervisor or any other agency official designated by the agency to conduct the review. The reviewing officer shall review the decision and provide the requestor with a response.
C. Any person may obtain court review of the denial of a public records request made in accordance with RCW 42.56.550 at the conclusion of two business days after the initial denial regardless of any internal administrative appeal.
NEW SECTION. SECTION 27. There is hereby added to K.C.C. chapter 2.12 a new section to read as follows:
A.1. No later than April 1 of each year, the public records officer of each county agency shall submit to the county council a report on the agency's performance in responding to public records requests during the preceding calendar year. The report shall include, at a minimum, a listing of all requests that either were closed during the preceding calendar or remained open at the end of the preceding calendar year, including, for each request:
a. the name of the requestor;
b. a summary of the request;
c. the date the request was received; and
d. the date the request was closed, if it has been closed.
2. A paper original and an electronic copy of the report shall be filed with the clerk of the council, who shall email the electronic copy to all councilmembers.
B. On January 15 and July 15 of each year, the county prosecuting attorney shall submit to the county council a report listing all pending lawsuits alleging that the county has violated chapter 42.56 RCW, including the name of the case, the court in which it was filed, the date on which it was filed, the case number, a brief summary of the claims made against the county and the current case status. A paper original and an electronic copy of the report shall be filed with the clerk of the council, who shall email the electronic copy to all councilmembers.
SECTION 28. The public records officer of each county agency shall submit a report by July 16, 2010, in the form of a paper original and an electronic copy, to the clerk of the council, who shall retain the original and email an electronic copy to each councilmember. The report shall briefly describe the steps the public records officer has taken to implement this ordinance, including, but not limited to, the requirements in sections 20.A. and 21.D.1. of this ordinance. The report may also provide a description of any challenges that were encountered in the implementation and any suggestions for additional legislation that would promote efficient access to public records.