Several Washington news organizations, led by the Associated Press and including the Spokesman-Review, sued the Washington Legislature on Tuesday for continually refusing to release documents they argue should be public records.
The lawsuit, filed in Thurston County Superior Court by a coalition of 10 media outlets, alleges violation of the state’s Public Records Act, which was enacted in 1972. The lawsuit alleges individual members of the Legislature are circumventing the intent of the public records law by refusing through administrative offices to turn over calendars, emails, text messages and other communications to reporters.
The media groups argue the refusal sets up a double standard that exempt state lawmakers from disclosures that other public officials must comply with.
“What they’re really trying to do is create special exemptions for the state legislators that don’t apply to any other elected officials,” said Duane Swinton, an attorney specializing in media law who’s represented the Spokesman-Review in legal cases and taught at Gonzaga University.
The lawsuit was filed after journalists had their records requests either denied or partially fulfilled through the Secretary of the Senate and the Office of the Chief Clerk of the House, rather than the legislators themselves. Michele Earl-Hubard, the attorney at Allied Group representing the media organizations, said it appeared from those responses that lawmakers were attempting to shield themselves from disclosure of certain records.
“That came to be people’s practice,” Earl-Hubard said. “We realized they were kind of hiding behind that.”
The lawsuit focuses on how the Washington Legislature interprets its 1995 revision to a 1971 definition of legislative records. Lawyers for the House and Senate regularly cite that change as a reason to withhold records, arguing that most of the lawmakers’ records – including calendars and text messages – are not considered public.
That is despite voters overwhelmingly passing an initiative in 1972 that affirmed the public’s right to “full access to public records so as to assure continuing public confidence in fairness of elections and governmental processes, and so as to assure that the public interest will be fully protected.”
The lawsuit argues that legislative lawyers’ interpretation of the 1995 change is wrong and legal action “is necessary to establish the Legislature did not reverse the will of the people in Initiative I-276 and remove or narrow its reach to the very elected individuals with which that initiative was so deeply concerned.”
The suit names the state Legislature, the Senate and House individually, and the leaders of the four political caucuses.
The Spokesman-Review participated in a blanket request made of 147 lawmakers on June 2 for calendars/schedules and any text messages pertaining to official business during this year’s legislative session. Reps. Gerry Pollet, D-Seattle, and Mike Pellicciotti, D-Federal Way, both provided their calendars. Other lawmakers either did not respond or sent notices to reporters that their requests were being forwarded to the administrative offices for review, who submitted responses indicating the records requested were not public.
At least one lawmaker seemed unaware that reporters have previously been thwarted in such requests.
Democratic Rep. Mike Sells, of Seattle, used his response as an opportunity to criticize the request as a “sad comment on the state of our press.”
“(Five) months down the road and you are asking for this stuff for 5 months back when you (the press overall) should have been on top of it in the first place,” Sells wrote in an email.
No responses were received from lawmakers in Eastern Washington. A request for comment from Sen. Mike Padden, R-Spokane Valley, was forwarded to the Republican Caucus in the chamber. Rep. Timm Ormsby, D-Spokane, declined to comment on the litigation. Asked about his process for handling public records requests, Ormsby said he forwarded them to the House clerk’s office for review, but couldn’t speak for other lawmakers.
“I think there’s probably as many opinions out there (on that) as there are members,” Ormsby said.
Calls requesting comment from comment Rep. Marcus Riccelli, D-Spokane, Rep. Matt Shea, R-Spokane Valley, Rep. Jeff Holy, and Sen. Michael Baumgartner, R-Spokane, were not returned Tuesday.
All U.S. states have some form of public disclosure laws, but many state lawmakers claim they are at least partially exempt. In a 2016 nationwide survey, a majority of top Republican and Democratic state lawmakers asserted they were not legally required to comply with open-records requests from AP seeking copies of their daily schedules and government emails.
Members of Congress are exempt from the Freedom of Information Act, the federal law governing public records.
The Washington state Supreme Court ruled in 2013 that the governor can claim “executive privilege” as a reason to withhold some documents, but Gov. Jay Inslee has yet to do so since taking office. He releases emails, schedules and other documents when requested.
Spokesman-Review reporter Kip Hill and Associated Press reporter Rachel La Corte contributed to this report.