Administrative Rule Review Report  #AR09-029

Legislative Service Office

8-Jun-09

 

AGENCY:        Department of Health.

 

DATE SUBMITTED:    May 26, 2009.

 

SUBJECT:        Chapter 2, Information Practices - Processing and Fee Schedules for Public Record Requests.

 

NATURE OF RULES:   Legislative and procedural.

 

STATUTORY AUTHORITY:   W.S. 9-2-106, 16-4-202, 16-4-204

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.

 

SUMMARY OF RULES:  This new chapter of rules provides consistent guidance for the handling of all public records requests to the Department of Health (five major divisions, the Office of Healthcare Financing (Medicaid), the five state institutions and many healthcare programs).  The rules provide applicable definitions, identify items to be included as costs in the calculation of fees, establish per page copying and faxing charges and identify factors in determining whether fees should be waived.

 

FINDINGS:  The rules appear to be within the scope of statutory authority and legislative intent, except as noted below.

 

The rules state at Section 6(a) that the Department may require that all or a portion of estimated fees be paid before making a public record available for inspection.  This conflicts with W.S. 16-4-204(a), which authorizes fees for copies but states that "[n]othing in this section shall be construed as authorizing a fee to be charged as a condition of making a public record available for inspection."  Administrative agencies have only those powers that are expressly granted by statute.  State v. Bannon Energy Corp., 2000 WY 54, ¶17, 999 P.2d 1306.  The rules otherwise appear to be within the scope of statutory authority and legislative intent.

 

STAFF RECOMMENDATION:   With respect to the fee for making public records available, it is recommended that the Council recommend that the Governor use his line item veto authority under W.S. 16-3-103(d) to veto, in Subsection 6(a) of the rules, the phrase "making the public records available for inspection or" and the last sentence of the subsection.  Otherwise, it is recommended that the rules be approved by the Council as submitted by the Agency.

 

 

                                                            _______________________

                                                            Gerald W. Laska

                                                                        Staff Attorney

 

                                                            _______________________

                                                                        Lynda G. Cook

                                                                        Staff Attorney

GWL/