Records exemptions proposed for Legislature blasted

OLYMPIA – A proposal to give legislators special exemptions that would allow them to keep some records secret was hammered Wednesday by representatives of Washington’s news media as infringing on the fundamental right of voters to know what their elected officials are doing.

“This is not a battle you’re going to win in the court of public opinion,” Seattle Times publisher Frank Blethen told the Senate State Government Committee.

Sen. Jamie Pedersen, D-Seattle, described the bill as an effort to give people what they want – “a higher level of transparency” – while recognizing mistakes lawmakers made last year in their hurried attempt to do what critics have called creating a special public records law for themselves.

Under Pedersen’s proposal, the Legislature would be subject to some aspects of the state Public Records Act, although lawmakers would have special exemptions to protect the personal information of constituents who contact them with sensitive problems. It would also carve out special exemptions for whistleblowers who contact lawmakers with problems, and for investigative information of complaints against members or staff about sexual assault or harassment.

“To protect the ability of people to come forward, their identities need to be protected,” Pedersen said.

It would also prevent the release of some documents and correspondence early in the process before legislation is filed, and make the changes retroactive.

That retroactive provision would essentially end a lawsuit filed by the Associated Press, The Spokesman-Review and many other news organizations against the Legislature after most members refused a request for public records such as calendars. A Thurston County Superior Court judge ruled in favor of the news organizations on most issues, and the case has been appealed to the Washington Supreme Court.

“I don’t think it’s a good idea for this issue to be resolved by the courts,” Pedersen said.

Having lost in the trial court, the bill seems to be trying to make the lawsuit moot, Rowland Thompson, a spokesman for Allied Daily Newspapers, told the committee. News organizations are willing to let the Supreme Court rule on the appeal, he said, but “we would rather lose the case than have this bill.”

Although the bill speaks “glowingly” about transparency, some of its provisions thwart that concept, Thompson said. Preliminary drafts, correspondence and recommendations on legislation, which other government entities must reveal, are exempted under the proposal.

David Zeeck, former publisher of the Tacoma News Tribune and president of Allied Daily Newspapers, called a permanent exemption for such documents tied to the legislative process “phenomenal overreach” if it extends beyond the passage of a bill.

“How we got to that point is critically important to a voter,” Zeeck said. “That’s a fundamental right of the people.”

The Public Records Act is part of a voter initiative passed in 1972, and other government officials around the state “have lived with it for decades,” said Kathy George of the Washington Coalition for Open Government.

Last year, lawmakers rushed through a bill with no hearing and little debate that exempted them from the Public Records Act. In the face of strong public opposition, they signaled Gov. Jay Inslee they wouldn’t try to override a veto even though it originally passed with veto-proof majorities in both chambers. Inslee subsequently vetoed that bill.

Unable to make it to Olympia for the hearing, Spokesman-Review Publisher Stacey Cowles submitted written comments that described the bill as having many of the same problems as the 2018 legislation that was vetoed. It seems to reject the basic tenets of the Public Records Act that presumes records are public with limited exemptions, and it creates a “false distinction” between legislators and other public officials, he wrote.

“This is a recipe for moving the public process further into the shadows and it is unacceptable,” Cowles wrote. “Fine-tuning the exemptions is the path forward, not wholesale exclusion for certain branches of government or reversal of the fundamental presumption of openness on which the (act) is built.”