Washington High Court to Decide Legislator Exemption on Public Records

The Washington State Capitol in Olympia.

(CN) – Washington state lawmakers illegally withhold records routinely provided to the public by other elected officials, an attorney for a coalition of news agencies told a panel of the state’s high court justices Tuesday.

Washington state’s Public Records Act, approved by voters in 1972, requires state agencies to “make available for inspection and copying all public records,” except those exempt from disclosure. State lawmakers have claimed for years they are exempt from such disclosure because the act does not include under its definition of “legislative records” lawmakers’ personal correspondence, drafts of bills or digests.

“They said this law that was passed by the people didn’t apply to them,” attorney Michele Earl-Hubbard said Tuesday. “What I’m talking about are the workplace harassment complaints, the emails, the text messages, the schedules. The records that are of utmost importance to the public interest. There is no way to get those if the law doesn’t apply.”

The lawmakers’ explanation – and their refusal to provide records related to education funding – sparked a 2017 lawsuit from a group of news organizations led by the Associated Press. In January 2018, Thurston County Superior Court Judge Chris Lanese ruled partially in favor of the news agencies, finding the act defined the office of every state senator and representative as a state agency subject to the law’s disclosure requirements. Lanese also tossed aside lawmakers’ argument that amendments to the act excluded their offices from that category.

The lawmakers appealed, and on Tuesday their attorney Paul Lawrence argued the two amendments – one in 1995 and another in 2007 – worked to exclude members of the Legislature from records production requirements under the act.

“Clearly where we are now, given amendments to word ‘agency’ in the act, the plain meaning is clear now that the Legislature is not an agency,” Lawrence told the full nine-member panel of the Washington Supreme Court.

Lanese dealt a win to the lawmakers by finding the act specifically excludes from disclosure requirements the Secretary of the Senate and the Chief Clerk of the House. To find otherwise “would impermissibly render these repeated, separate references to the Secretary of the Senate and the Chief Clerk of the House superfluous,” he wrote.

In the end, the state Supreme Court may not have the final word on the matter. In the wake of Lanese’s ruling, state lawmakers twice tried to pass legislation exempting themselves from public records disclosure. Gov. Jay Inslee vetoed the first attempt after it provoked a massive public outcry. The second died in committee during the 2019 legislative session.

But Earl-Hubbard pointed out that such efforts – whether through amendments or new legislation, have so far been a failure.

“The people were the first legislators,” Earl-Hubbard said. “It is their will and their intent that should be honored. At no time have our Legislature ever exempted themselves from those rules and in the four occasions they tried, they failed.”

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