Washington High Court Rules Legislators Subject to Open Records Law

(CN) – Washington state lawmakers must share their personal correspondence, drafts of bills and schedules under the state’s Public Records Act, the Evergreen State’s high court justices ruled Thursday.

The Washington State Capitol in Olympia.

Lawmakers have claimed for years that their records are not subject to disclosure requirements under the voter-approved 1972 law. A coalition of 10 news agencies led by The Associated Press sued in 2017 claiming such records – including, among other things, emails, text messages and workplace harassment complaints – were what the public needs access to most.

Thurston County Superior Court Judge Chris Lanese agreed in part, ruling in 2018 that state representatives and senators were included among other elected officials subject to the Public Records Act. The lawmakers appealed, and the parties argued the case before the Washington State Supreme Court in June.

On Thursday, the high court affirmed the lower court’s decision in a split ruling.

“If, as the legislative defendants argue, individual legislators’ offices were not ‘agencies’ subject to the PRA’s general public records disclosure mandate, then ostensibly neither would be the governor’s office or the eight other executive branch entities,” Associate Justice Susan Owens noted in the majority opinion. “Such an interpretation of the PRA would be untenable given long-standing practice regarding the PRA’s applicability to executive branch offices.”

The media outlets’ attorney Michele Earl-Hubbard said Thursday that the ruling is a win for public accountability.

“Today, the Supreme Court has confirmed that the individual legislators are in fact covered by the PRA and do have to respond under the act,” Earl-Hubbard said in an interview. “Just like every other mayor or school board member, they have to respond. It is no longer appropriate to say, ‘I don’t have to follow this law because it doesn’t apply to me.’”

The act requires “all state agencies” to “make available for public inspection and copying all public records.” It does not specifically say whether individual lawmakers are included under its definition of state agencies. But it does provide an explicit exemption for the secretary of the state Senate and the chief clerk of the House – and does not provide a specific exemption for individual lawmakers, Justice Owens wrote.

Owens shrugged off lawmakers’ claim that the Legislature is a branch of government, rather than a government agency. And she found Washington state’s law governing campaign finance contributions and disclosure, a precursor to the Public Records Act does include individual lawmakers under its definition of “state agency.” That definition was operational at least until the Legislature amended the law in 2005 and 2007. And even then, lawmakers couldn’t have excluded themselves from records disclosure requirements simply through attrition, the ruling states.

“Without more – such as notice to the electorate that legislators were attempting to exempt themselves from the PRA – neither amendment was sufficient to accomplish that feat.”

Dissenting in part, Justice Debra Stephens wrote she would consider the state Senate and House – not just the individual lawmakers contained within them – state agencies and therefore beholden to the Public Records Act.

Separately, Justice Sheryl Gordon McCloud said she would have found that legislators are not agencies and instead would have found they are subject to the Public Records Act “to the same extent as the Legislature of which they form a part.”

In a statement, House Speaker-designate Laurie Jinkins, D-Tacoma, said lawmakers would review the opinion and work on implementing it.

“House Democrats believe in open and accountable government. While we have already taken action toward better access to public records, we have more work to do,” Jinkins said. “We are still reviewing the court’s decision to determine its specific impacts and will work with our colleagues in the House and Senate to move forward on implementing the decision to ensure transparency in government for Washingtonians.”

Earl-Hubbard said the majority ruling should be a rallying point for increased transparency in other states.

“We hope that this is a nice signal to other states that they can and should be holding their legislators accountable, just like they do their local officials,” Earl-Hubbard said. “We think that transparency and sunshine is the best disinfectant to corruption and it will make people do a better job.”

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