End lawmakers’ exemption from public records law | Our Corner

By The Herald Editorial Board

Recall earlier this summer when the Legislature passed its operating budget – as well as its latest spending plan to address the state’s K-12 education funding crisis – a $43.7 billion budget that was a 12 percent increase over the previous budget, which included a major change to the state’s tax system.

The deals involved were negotiated behind closed doors and the resulting bills were released for public review less than a day before they had to be adopted and signed by the governor to avoid a partial government shutdown.

Were this any other state office or local government, news organizations – and even citizens – could have requested public records, such as emails, calendars and text messages that led to creation of that legislation in advance of their passage. Even if requested after adoption, the public records could have provided necessary insight into a public process that is of undeniable interest to any state resident and taxpayer.

Actually, news organizations did seek such documents earlier this summer, filing a request under the state Public Records Act with all 147 state lawmakers, seeking calendars and schedules that would have shown who legislators met with and how they spent their workdays during the regular and special sessions between January and the end of June.

Except for a handful of lawmakers who complied with the request, most punted the response to lawyers for the House and Senate, who declined the requests by citing a 1995 state law that they claim exempts them from the Public Records Act.

Several state news organizations, including The (Everett) Herald’s Sound Publishing, are now suing the Legislature over its refusal to comply with public records requests. A lawsuit, filed Tuesday in Thurston County Superior Court challenges the exemption that lawmakers are using to keep secret their daily schedules, emails, text messages and other documents related to their work.

As long as the state has had a Public Records Act, which was adopted through a citizens’ initiative in 1972 with 72 percent approval, news organizations and other advocates for open access to public records have pressed for lawmakers to include themselves under the act’s provisions.

And while most states make similar exemptions for their state lawmakers, 12 states, including Oregon and Idaho, expect their lawmakers to comply with public records law.

The necessity for that access is clear: state lawmakers ought to be held to the same standard that any other public official or local government is required to meet.

“How can we as citizens know that our elected officials are making good decisions if we don’t have access to the same information they are using to make those decisions?” asked Toby Nixon, a Kirkland City Council member and president of the Washington Coalition of Open Government.

The lawsuit points to the conflict between the law created by the 1972 initiative and lawmakers’ interpretation of its 1995 revision of a 1971 definition of legislative records.

The lawsuit charges that the 1995 legislation “did not reverse the will of the people (in the ‘72 initiative) and remove or narrow its reach to the very elected individuals with which that initiative was so deeply concerned.”

In the past, lawmakers have claimed that complying with the Public Records Act would be complicated and costly. But that’s not an excuse that they have allowed other public officials, agencies and governments to hide behind. The courts that hear this case should hold legislators to the same standard now.

Previously, the state Supreme Court appears to have sided with a broad application of records act. The lawsuit cites case law as recent as 2015, as well as cases before it in 1978, 2007 and 2011, where the Supreme Court has held that the Public Records Act subjects “virtually any record related to the conduct of government” to public disclosure.

One case could complicate the argument. The Supreme Court, citing the separation of powers among the state’s three branches, allowed in a 2013 decision that the governor holds “executive privilege” to exempt some documents. Gov. Jay Inslee has not claimed the privilege and has released emails and other documents when requested.

We’ll leave squaring those cases to the Supreme Court. But assuming the argument advances to the high court, justices should give the greatest weight to the will of the people and their desire for good and transparent government.