OLYMPIA – Washington lawmakers are facing a backlash after they bypassed normal legislative procedures and quickly approved a bill exempting themselves from the state’s Public Records Act and subjecting themselves instead to more limited disclosure requirements.
More than a dozen newspapers across the state ran front-page editorials Tuesday urging Gov. Jay Inslee to veto the measure that was passed by the Legislature on a “veto-proof” two-thirds margin Friday – a 41-9 vote in the Senate and a 83-14 vote in the House – and force lawmakers to decide whether they want to take a second vote to override his action.
The bipartisan bill prohibits the release of lawmaker communication with constituents, but allows release of some lawmaker correspondence beginning on July 1, including those with lobbyists; information from lawmaker calendars; and final disciplinary reports. However, because the bill is retroactive, it would prohibit the release of the records being sought by the coalition of news organizations that sued last September and who prevailed in an initial court ruling last month.
In defending their votes, state legislators have made several assertions – on social media, their websites and in letters to their constituents – about the bill, which was introduced and passed in less than 48 hours.
CLAIM: Democratic Sen. Jamie Pedersen writes for an online labor publication that it’s clear that lawmakers are exempt from the state’s Public Records Act, passed in 1972: “This ruling overturns settled law from the last 45 years.”
THE FACTS: The law is not settled. A coalition of media groups, led by the Associated Press, sued last year. In denying media requests for lawmaker records, the Legislature often cited a 1995 change in law that retroactively defined what a legislative record was. Attorneys for the Legislature later argued in court that changes in 2007, when some of the public records act’s definitions were incorporated into a state statute separate from the campaign finance portions of the original initiative, definitively removed lawmakers from disclosure requirements.
During a December court hearing, the judge asked Paul Lawrence, one of the private attorneys hired by the Legislature, if lawmakers were subject to the public records act between 1995 and 2007.
“I think it’s an open question,” Lawrence said.
Last month, Thurston County Superior Court Judge Chris Lanese ruled state representatives and senators and their offices are fully subject to the same broad public disclosure requirements that cover other local and state elected officials and state employees.
CLAIM: Democratic Rep. Gael Tarleton says the Legislature should be treated the same as the judiciary, which is exempt from the Public Records Act. She wrote: “Just like the judicial branch, the Legislature – following two decades of legal advice from both Republican and Democratic Attorneys General – believed it was also not subject to disclosure requirements under the Public Records Act, which precipitated the media lawsuit against the state Legislature.”
THE FACTS: Yes, the judiciary is exempt. A 7-2 Supreme Court ruling in 2009 held that the judiciary is exempt from the Public Records Act. In 2016, the court enacted an administrative rule – after public meetings and input – relating to which court records are exempt and which are disclosable. The only judicial review thus far on the Legislature’s assertion of exemption is the Thurston County ruling last month, in which the judge, citing the judiciary comparison, wrote that when relating to individual lawmakers, “this argument may be disposed of in short order.” While the superior court judge ruled the law is ambiguous when it comes to the entities of the Senate and House as a whole, he wrote the offices of individual lawmakers clearly fall under the definition of state offices considered to be agencies under the law and thus subject to broader disclosure requirements.
CLAIM: Democratic Rep. Noel Frame said the privacy of constituents needs to be protected. She wrote on her Facebook page that lawmakers “have an obligation to protect the privacy of our constituents and the broader public. And we have to balance that against the public interest in transparency of our government.”
THE FACTS: There are already provisions to protect constituency privacy in certain cases as people communicate with local elected officials and employees at state agencies about sensitive information that state lawmakers are expressing concern about. The current Public Records Act allows a privacy exemption in cases where the information “would be highly offensive to a reasonable person, and “is not of legitimate concern to the public.” There are also more than 500 exemptions to the PRA that could have been used to shield truly confidential information,
CLAIM: Lawmakers said an official public hearing could not be held because it was too late in the legislative session, the rushed legislative process was only done because the judge ruled in the middle of the session that is set to end March 8 and refused to stay his decision. Pedersen wrote: “I regret that the bill did not have time to go through the regular committee process. That is driven mostly by the fact that Judge Lanese ruled in the middle of the legislative session and refused to stay his decision.”
THE FACTS: On the same day lawmakers passed SB 6617 out of both chambers, they introduced a new bill related to raising the age to purchase certain semi-automatic rifles or shotguns from 18 to 21, and it received an official public hearing Tuesday. As for the concern about the stay, Lanese noted no records would be released before next steps were to be discussed at a scheduled March 9 status conference. Court filings show legislative lawyers never asked Lanese for a stay.
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