Bob Ferguson
Other LanguagesAGLO 1973 No. 99 -
Attorney General Slade Gorton
INITIATIVE NO. 276 ‑- PUBLIC RECORDS ‑- FEES ‑- CORPORATIONS
(1) The provisions of RCW 42.17.300 which relate to the charges that may be imposed for providing copies of certain "public records" under Initiative No. 276 do not supersede the preexisting fees for copies of UCC security transaction filings under RCW 62A.9-407 or of corporation papers under RCW 23A.40.030, RCW 24.03.410 and RCW 24.06.455 in any cases because those documents do not constitute "public records" within the meaning of that initiative.
(2) RCW 42.17.300 does not supersede the preexisting fees for copies of state records provided for in RCW 43.07.120 in those cases where the individual seeking such copies is asking for them as a matter of right under RCW 43.07.030(7), supra, rather than merely requesting to inspect them and then to be allowed to use the secretary of state's facilities to himself make the copies he desires.
- - - - - - - - - - - - -
October 15, 1973
Honorable A. Ludlow Kramer
Secretary of State
Legislative Building
Olympia, Washington 98504
Cite as: AGLO 1973 No. 99
Dear Sir:
By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:
Do the provisions of RCW 42.17.300 which relate to the charges that may be imposed for providing copies of "public records" under Initiative No. 276, supersede the preexisting statutory fees for copies of designated documents in the custody of the secretary of state which are set forth in RCW 43.07.120, RCW 62A.9-407, RCW 23A.40.030, RCW 24.03.410 and RCW 24.06.455?
We answer this question in the manner set forth in our analysis.
ANALYSIS
The essence of your question is whether a conflict exists between the several preexisting fee statutes cited in your letter and the provisions of § 30, chapter 1, Laws of 1973 (Initiative No. 276), now codified as RCW 42.17.300.
As you know, RCW 43.07.040 makes the secretary of state the custodian of certain state records, as follows:
"The secretary of state is charged with the custody:
"(1) Of all acts and resolutions passed by the legislature;
"(2) Of the journals of the legislature;
[[Orig. Op. Page 2]]
"(3) Of the seal of the state;
"(4) Of all books, records, deeds, parchments, maps, and papers required to be kept on deposit in his office pursuant to law;
"(5) Of the enrolled copy of the Constitution."
RCW 43.07.120, the first of the several preexisting fee statutes which you have cited, then provides that:
"The secretary of state shall collect the fees herein prescribed for his official services:
"(1) For a copy of any law, resolution, record, or other document or paper on file in his office, fifty cents per page for the first ten pages and twenty-five cents per page for each additional page;
". . .
"All fees herein enumerated must be collected in advance."
In addition to your function as custodian of state records, you have also been designated as the filing officer for certain security instruments under Article IX of the uniform commercial code. See, RCW 62A.9-401. The preexisting fee statute with respect to these documents is RCW 62A.9-407 which provides, in material part, as follows:
". . .
"(2) Upon request of any person, the filing officer shall issue his certificate showing whether there is on file on the date and hour stated therein, any presently effective financing statement naming a particular debtor and any statement of assignment thereof and if there is, giving the date and hour of filing of each such statement and the names and addresses of each secured party therein. The uniform fee for such a certificate shall be two dollars. Upon request the [[Orig. Op. Page 3]] filing officer shall furnish a copy of any filed financing statements or statements of assignment for a uniform fee of four dollars for each particular debtor's statements requested."
Thirdly, your office through its corporations division is also responsible for receiving and maintaining custody of various documents relating to both profit and nonprofit corporations under the Washington Business Corporation Act (Title 23A RCW), the Washington Nonprofit Corporation Act (chapter 24.03 RCW) and the Miscellaneous and Mutual Corporations Act (chapter 24.06 RCW). Each of these laws also contains a statute requiring you to charge certain designated fees for copies of these corporate instruments. See, RCW 23A.40.030, RCW 24.03.410 and RCW 24.06.455, the first of which provides that:
"The secretary of state shall charge and collect in advance from every domestic and foreign corporation, except corporations organized under the laws of this state for which existing law provides a different fee schedule:
"(1) For furnishing a certified copy of any document, instrument or paper relating to a corporation, five dollars;
"(2) At the time of any service of process on him as agent of a corporation, five dollars, which amount may be recovered as taxable costs by the party to the suit or action causing such service to be made if such party prevails in the suit or action.
"The secretary of state shall also charge and collect from every person, organization, or group for furnishing copies of any document, instrument or paper relating to a corporation, fifty cents each for the first ten pages, twenty-five cents per page thereafter."
Similarly, RCW 24.03.410, which pertains to nonprofit corporations, requires that:
"The secretary of state shall charge and collect:
"(1) For furnishing a certified copy of [[Orig. Op. Page 4]] any document, instrument, or paper relating to a corporation, fifty cents per page and two dollars for the certificate and affixing the seal thereto.
"(2) At the time of any service of process on him as registered agent of a corporation, two dollars, which amount may be recovered as taxable costs by the party to the suit or action causing such service to be made if such party prevails in the suit or action."
And, likewise, RCW 24.06.455, which relates to miscellaneous and mutual corporation filings, provides that:
"The secretary of state shall charge and collect:
"(1) Fifty cents per page and two dollars for the certificate and affixing the seal thereto for furnishing a certified copy of any document, instrument, or paper relating to a corporation.
"(2) Two dollars at the time of any service of process on him as resident agent of any corporation, which may be recovered as taxable costs by the party to the suit or action if such party prevails."
We turn, next, to the pertinent provisions of Initiative No. 276. This measure, as approved by the voters at the November 7, 1972, general election, is a comprehensive enactment consisting of four major substantive chapters. The first of these relates to electoral campaign financing and requires the disclosure of all sources of campaign contributions and the objects of all such expenditures. The second is designed to regulate the activities of lobbyists and to require reports of their expenditures. The third, as fully set forth in § 24 of the initiative (now RCW 42.17.240), requires both candidates and elected officials to file periodic reports of a number of designated matters relating to their financial and business affairs; and finally, the fourth part of the initiative governs access to the "public records" of state and local governmental agencies.
[[Orig. Op. Page 5]]
Following its approval by the voters, this new law was designated as chapter 1, Laws of 1973, and codified as chapter 42.17 RCW. For the purposes of that portion which relates to public records, this term is defined in RCW 42.17.020(24) to mean:
". . . 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."
Subject to a number of specified exemptions contained in RCW 42.17.310 (codifying § 31 of the initiative), RCW 42.17.260 than requires that:
"Each agency, in accordance with published rules, shall make available for public inspection and copying all public records. . . ."
Next to be noted is RCW 42.17.270 which implements this requirement by providing that:
"Public records shall be available to any person for inspection and copying, and agencies shall, upon request for identifiable records, make them promptly available to any person. Agency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency."
And finally (insofar as is here material), RCW 42.17.300, supra, codifying § 30 of the initiative, provides that:
"No fee shall be charged for the inspection of public records. Agencies may impose a reasonable charge for providing copies of public records and for the use by any person of agency equipment to copy public records, which charges shall not exceed the amount necessary to reimburse the agency for its actual costs incident to such copying."
[[Orig. Op. Page 6]]
If, as your letter speculates, this statute is in conflict with the several preexisting fee statutes which we have earlier quoted in this opinion, then, perforce, RCW 42.17.300 will prevail because of the following express mandate of § 47 of the initiative, now codified as RCW 42.17.920:
". . . In the event of conflict between the provisions of this act and any other act, the provisions of this act shall govern."
As in any case, however, which involves what is in effect an implied amendment or repeal of an earlier statute by a later inconsistent act, the existence of the requisite conflict or inconsistency is here not to be presumed but, instead, is to be avoided if at all possible. As stated in Abel V. Diking and Drainage Imp. Dist. No. 4, 19 Wn.2d 356, 363, 142 P.2d 1017 (1943):
"Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect. . . ."
In this case we can conceive of several different avenues which a court might pursue in order to avoid a conflict between the restrictions of RCW 42.17.300, supra, and the fee requirements of RCW 43.07.120, et al., supra. One, quite obviously, would be to hold that at least some of the classes of documents involved in your request are simply not "public records" as that term is defined in RCW 42.17.020(24), supra. A second would be to determine that the apparently inconsistent provisions of RCW 42.17.300 and the preexisting fee statutes here involved actually relate to different situations even if or where the records in question are "public records" under the initiative. And a third would be to find or in some other way ascertain that the amounts required to be charged under these several preexisting fee statutes represent, in fact, the actual costs to your office in providing copies of the various records to which these fees relate. Without necessarily rejecting the validity of this [[Orig. Op. Page 7]] third approach in a particular case, we think that the more viable of these three avenues are the first and the second ‑ to which we will now address ourselves in order.
In AGO 1973 No. 4 [[to Robert E. Schillberg, Prosecuting Attorney, Snohomish County on January 19, 1973]], copy enclosed, this office had occasion to compare the pre‑Initiative No. 276 legal status of certain records held by school districts with that enjoyed by those same records under this new law ‑ and in so doing we identified a point which is also relevant here. Simply stated, there is a rather significant difference between the definition of what constitutes a public record under the initiative and the meaning of that term under the common-law rules which prevailed in this state before its adoption.
At common law a public record was generally defined as including any record in the custody of a public agency which that agency is required by law to maintain ‑ irrespective of its contents. See, State ex rel. Cook v. Reed, 36 Wash. 638, 79 Pac. 306 (1905). If it met this test and no statute or constitutional provision rendered the record confidential because of the information which it contained, it was deemed to be open to public inspection ". . . when a necessity for such inspection is shown and the purpose does not seem improper, and where the disclosure would not be detrimental to the public interest; . . ." Fayette County v. Martin, 279 Ky. 387, 130 S.W.2d 838 (1939); accord, 45 Am.Jur., Records and Recording Law, § 19, and authorities cited therein.
Under Initiative No. 276, on the other hand, it is not the presence or absence of a requirement of maintenance of a particular record by a public agency that gives rise to a right of access or inspection and copying; instead, it is the content of the record which is determinative of whether or not the various requirements of the initiative apply. In order to be a "public record" for the purposes of this law (and thus, for those of RCW 42.17.300, supra) a record in the custody of a public agency must "contain . . . information relating to the conduct of government or the performance of any governmental or proprietary function . . ."
There obviously can be no doubt whatsoever but that all of the several classes of records to which your letter refers, being records that your office is required by specific statutes to maintain, constitute public records under the common-law definition. It is also quite clear that the [[Orig. Op. Page 8]] common-law principles which we have above described remain applicable in those cases not covered by Initiative No. 276.1/ Therefore, it readily follows that, as is also specifically provided in the preexisting statutes which you have cited, all of those records ‑ the various state documents of which you are custodian under RCW 43.07.040, as well as those security instruments that have been filed with your office under the uniform commercial code and the corporation documents which you hold under the several corporation acts ‑ are still available for public inspection and for the issuance of copies upon request and payment of the appropriate charges, irrespective of whether they also contain such information as will cause them to be "public records" under the definition in RCW 42.17.020 (24), supra.
Insofar as this latter issue is concerned, moreover, it is further readily apparent that the test set forth in that statutory definition is also plainly met in the case of the first of these three classes of records ‑ because such things as acts or resolutions passed by the legislature together with the journals of that body and the other state documents included under RCW 43.07.040 and 43.07.120, supra, unquestionably contain such information relating to the conduct of government as fits under that definition. The proper measurement of the fees or charges to be imposed for copying these documents cannot, therefore, be determined at this level of our analysis but will, instead, have to be resolved through application of another of the approaches to an avoidance of conflict between the subject statutes which we have earlier delineated. UCC security instruments and the various corporation filings which are included in the second and third of these categories, on the other hand ‑ although still open public records under the common law and applicable pre‑Initiative No. 276 statutes ‑ do not appear to us to meet this test so as to be "public records" under Initiative No. 276.
[[Orig. Op. Page 9]]
RCW 42.17.010, which codifies an introductory declaration of policy contained in § 1 of the initiative, describes the policy underlying its provisions with respect to public records by stating that:
"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."
And RCW 42.17.020(24) in defining the term "public record" also speaks of information relating to governmental conduct rather than to the conduct of those private individuals or organizations whose business dealings and activities are recorded in the documents to which the latter two segments of your question pertain.
It is true, of course, that the function of recording the security transactions and the corporate activities which are described in those UCC and corporation filings is, itself, a governmental function; and from this premise it might be argued that the documents constitute "public records" under the initiative because they must be examined in order to determine whether that recording function is properly being carried out. But what would be the legitimate object of any such examination? Not the ascertainment of the contents of those documents but, rather, merely their existence in the file they are supposed to be in, etc. Conversely, any proper examination of their substance and contents under the applicable common-law rules and pre‑initiative statutes would not be motivated by a desire to be informed as to governmental conduct but, as aforesaid, only as to the commercial or similar conduct of private individuals or organizations.
It is because of this characteristic that we do not believe those records ‑ even though they remain open public records under the broader common law test ‑ constitute "public records" under the initiative, and, hence, under RCW 42.17.300, supra. Accordingly, irrespective of the extent to which that statute may be applicable with respect [[Orig. Op. Page 10]] to the charges to be imposed for copies of those state records which you hold under RCW 43.07.040, supra ‑ a question to which we will next address ourselves ‑ we do not think that it apples to your UCC security instruments or your corporation documents which, instead, remain covered (in terms of fees for copies) by the other preexisting fee statutes cited in your request; i.e., RCW 62A.9-407, RCW 23A.40.030, RCW 24.030.410 and RCW 24.06.455.
In order to set the stage for a determination of whether an unavoidable conflict exists between RCW 42.17.300 and the preexisting statute which, on its face, governs the fees to be collected for copies of the various state records included under RCW 43.07.040, supra, let us first here repeat for ease of reference the relevant text of both statutes in the order in which they were enacted.
RCW 43.07.120, codifying § 43.07.120, chapter 8, Laws of 1965, provides that:
"The secretary of state shall collect the fees herein prescribed for his official services:
"(1) For a copy of any law, resolution, record, or other document or paper on file in his office, fifty cents per page for the first ten pages and twenty-five cents per page for each additional page;
". . .
"All fees herein enumerated must be collected in advance."
RCW 42.17.300, codifying § 30 of Initiative No. 276, then states that:
"No fee shall be charged for the inspection of public records. Agencies may impose a reasonable charge for providing copies of public records and for the use by any person of agency equipment to copy public records, which charges shall not exceed the amount necessary to reimburse the agency for its actual costs incident to such copying."
Immediately to be noted from a comparative reading of these two statutes is the fact that RCW 43.07.120 is mandatory ‑ it requires the specified fees to be collected ‑ while RCW 42.17.300 is only permissive. To the extent that this latter statute applies to the inspection or copying of [[Orig. Op. Page 11]] a given "public record" it says, first, that no fee shall be charged for a mere inspection of the record; and then it says that if a copy is desired the agency having custody may impose a reasonable fee not in excess of its actual cost for the performance of this service. By implication, then, that agency may, instead, charge no fee at all if, in its discretion, it determines as a matter of policy not to do so.
Moreover, it is further to be seen that just as you have no discretion under RCW 43.07.120 to charge or not charge a fee for supplying copies of those state records covered by that statute (unlike the situation which would prevail if RCW 42.17.300 were deemed to be applicable), you likewise have no discretion in terms of whether or not to utilize your own office facilities for the production of those copies. RCW 43.07.030 states in this regard that:
"The secretary of state shall:
". . .
"(7) Furnish, on demand, to any person paying the fees therefor, a certified copy of all or any part of any law, record, or other instrument filed, deposited, or recorded in his office;"
Under Initiative No. 276, on the other hand, although an agency is required to make its "public records" available for inspection and copying (RCW 42.17.260, supra)2/ it is only required to use or make available its own facilities for this purpose where to do so would not ". . . unreasonably disrupt the operations of the agency." RCW 42.17.270, supra. Thus, while any person demanding that your office supply him with a copy of (for example) a recently enacted session law is entitled to have you make that copy and deliver it to him upon payment of the fee set forth in RCW 43.07.120, supra, if that statute is still deemed to be applicable in such a case, the most he could require of you if that statute were deemed to have been superseded by Initiative No. 276 would be an inspection of your original document plus the use of your facilities to copy it (upon payment of a reasonable fee not in excess of your costs in supplying this service) if his use of those facilities would not disrupt the operations of your office.
[[Orig. Op. Page 12]]
In Rosenoff v. Cross, 95 Wash. 525, 164 Pac. 236 (1917), our supreme court, when confronted with a similar instance of an apparent conflict between two statutes, applied an analytical approach aimed at reconciliation which we have also used in prior opinions of our own3/ and which we again believe is appropriate here. In essence, this approach seeks to achieve a reconciliation by means of considering the possibility that the two apparently inconsistent statutory provisions actually relate to different subjects.
In the instant case, applying this analytical technique, we think that the provisions of RCW 43.07.120 and those of RCW 42.17.300, supra, can be reconciled on the basis of the above described two related distinctions between them. This can be accomplished by likewise distinguishing between those situations in which a person simply comes into the secretary of state's office and asks that you supply him with a copy of a session law or other state document and those in which the person in question instead merely asks to be allowed to inspect a copy of that same document and then to use the secretary of state's copying facilities to himself to make a copy of it ‑ assuming that his use of those facilities will not unduly burden the agency. In the first case, RCW 43.07.120 will continue to apply and the fees provided for thereunder will thus still be required to be paid. In the second situation, on the other hand, RCW 42.17.300 will apply so as to limit the charge for this individual's use of your copying facilities (if permitted) to an amount which, in the words of that section of Initiative No. 276, ". . . shall not exceed the amount necessary to reimburse the agency for its actual costs incident to such copying."
SUMMARY
In summary, then, our over-all answer to your question is as follows:
(1) The provisions of RCW 42.17.300 which relate to the charges that may be imposed for providing copies of certain "public records" under Initiative No. 276 do not supersede the preexisting fees for copies of UCC security transaction filings under RCW 62A.9-407 or of corporation papers under RCW 23A.40.030, RCW 24.03.410 and RCW 24.06.455 [[Orig. Op. Page 13]] in any cases because those documents do not constitute "public records" within the meaning of that initiative; and
(2) RCW 42.17.300 does not supersede the preexisting fees for copies of state records provided for in RCW 43.07.120 in those cases where the individual seeking such copies is asking for them as a matter of right under RCW 43.07.030(7), supra, rather than merely requesting to inspect them and then to be allowed to use your agency's facilities to himself make the copies he desires.
We trust the foregoing will be of assistance to you.
Very truly yours,
SLADE GORTON
Attorney General
PHILIP H. AUSTIN
Deputy Attorney General
WAYNE L. WILLIAMS
Assistant Attorney General
*** FOOTNOTES ***
1/See, RCW 4.04.010 which states that: "The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."
2/Assuming, of course, that the information they contain does not bring them within the scope of one of the several exemptions listed in RCW 42.17.310, supra.
3/See, e.g., AGO 1969 No. 22 [[to R. Ted Bottiger, State Representative on November 25, 1969]].