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Legislators might not be able to hide things by refusing records requests

Defense attorney Paul Lawrence addresses Thurston County Superior Court during a hearing on a lawsuit filed against the Washington Legislature by a coalition of news media organizations over records access, Friday, Dec. 22, 2017, in Olympia, Wash. Judge Chris Lanese is weighing the case that will determine whether the Legislature is fully subject to the state's public records act. Lanese heard arguments for more than two hours Friday in a key hearing in the case brought by a coalition of news organizations led by The Associated Press, who sued in September. (Elaine Thompson / AP)
By Jim Camden jimc@spokesman.com(509) 879-7461

OLYMPIA – Individual legislators and their offices might not be able to keep information secret by claiming they are exempt from public records requests, a Thurston County Superior Court judge said Friday.

But the changes legislators made to open government provisions in the decades after voters overwhelmingly approved an initiative are ambiguous, Judge Chris Lanese said. It’s possible that the Legislature as a whole, and the House and Senate as specific entities, are not governed by the Public Records Act, even if individual legislators and their offices are, he said.

The law says the records of a state agency are public, a state office is an agency and a legislative office is a state office, Lanese told attorneys for the Legislature, which is fighting requests for public records by state news organizations.

Although he had tough questions for both sides in a hearing to decide whether the case goes forward, the judge said at one point he was “somewhat skeptical that legislative offices are not subject to the Public Records Act.”

Paul Lawrence, a private attorney hired by the Legislature to defend the public records denials, said over time the public disclosure initiative passed by voters in 1972 was amended by legislators.

In 2007, lawmakers added provisions that legislative records kept by the clerk of the House and secretary of the Senate could be disclosed.

That doesn’t seem like “the be-all and end-all” about legislative records, Lanese said. “The Legislature could have cleared this up with one more sentence,” he added.

“In a perfect world,” Lawrence agreed. “But we don’t live in a perfect world.”

Michele Earl-Hubbard, attorney for the news organizations, agreed that a legislative office should be considered a state office.

If you looked up state office in the dictionary, legislative office would be there, she suggested.

“Actually, it’s not,” replied Lanese, who said he’d looked. “Going beyond the plain language in this case seems to be a very dangerous thing.”

But the law passed in 2007 does not specifically exempt the Legislature, and there were no discussions at the time that was happening, Earl-Hubbard said.

“If the Legislature is going to exempt itself from the law, it should tell the public,” she said.

Led by the Associated Press, news organizations including The Spokesman-Review requested certain documents earlier this year from all 147 legislators under the Public Records Act. Although a few individual legislators provided some records, the secretary of the Senate and clerk of the House rejected the requests as a whole. The news organizations sued to force the disclosure.

Since the lawsuit was filed, some lawmakers have said they will push legislation in the 2018 session that requires the disclosure of certain records, including complaints of sexual assault or harassment.

In wrestling with the definitions of which legislative offices might be covered by the Public Records Act and which might be exempt, Lanese took the unusual step of calling a member of the attorney general’s office who was watching the proceedings to the podium. He invited the office, which he noted “represents the interests of the people,” to weigh in, and gave the office two weeks to either decline or file a legal brief with an official position.

After that, attorneys for the Legislature and the news organizations will have a week to respond to questions he’s raised or any issues from the attorney general’s office before Lanese makes his ruling.