Court to hear arguments on whether lawmakers can deny public records requests

OLYMPIA – Two years after Washington news organizations requested and were denied records from legislators, the fight will end up Tuesday where most people thought it would: the state Supreme Court.

Attorneys for the news organizations, led by the Associated Press and joined by The Spokesman-Review, will argue why records about the negotiations over public school funding in 2017 and reports of sexual misconduct by lawmakers and staff should be available to the public.

Outside attorneys for legislators will argue why they are exempt from the Public Records Act and why a Thurston County Superior Court judge made a mistake when he said they weren’t.

It’s a legal battle pitting the public’s right to know against the constitutional separation of powers, with several skirmishes already fought.

In June 2017, Olympia-based reporters for the news organizations filed public records requests with all 147 legislators, legislative leaders and the House and Senate as a whole. Most were denied, citing an exemption claimed in laws passed since the Public Records Act was approved by voters as part of 1973 initiative for open government.

“The requests were made for the specific records requested due to the intense public interest and desire for scrutiny of the Legislature and legislators at the time,” Michele Earl-Hubbard, attorney for the news organizations, wrote in the Supreme Court brief. Legislators were trying to pass a budget that would satisfy a court order on public schools and women had reported harassment at the capitol, she wrote.

The news organizations sued, and Superior Court Judge Chris Lanese ruled that both sides got part of the law right, and part of it wrong. The House and Senate, and those bodies’ chief clerk and secretary, respectively, did have certain exemptions in the law.

But each legislator’s office is covered under the law as a “state agency,” Lanese said. There are no special exemptions for individual legislators, and they are subject to the law just as a city council member, a mayor or a county commissioner would be.

“Individual legislators make up the Legislature as a whole and do not fall individually within the definition of ‘state agencies,’ ” Paul Lawrence, one of the lawyers hired by legislators, wrote in his brief.

A month after Lanese’s ruling, legislators pushed through a bill to exempt themselves from many public records requests, arguing they weren’t state agencies, but narrowing some exemptions the House chief clerk and Senate secretary could apply.

They suspended normal procedures, moved the bill to the floor without a hearing and passed it by large margins in both houses without any legislator speaking against it. An outpouring of opposition from the public, spurred in part by front-page editorials in many of the state’s newspapers, led to many legislators in both chambers asking Gov. Jay Inslee to veto the bill. He did.

A task force was set up last year to look for a compromise acceptable to legislators, news organizations and open records advocates. But after four meetings, they failed to reach an overall agreement and came up only with recommendations like, “The Legislature should strive for greater transparency” without solving thornier issues about emails from constituents describing personal problems and documents created during closed negotiations.

In January, Senate Law and Justice Committee Chairman Jamie Pedersen, D-Seattle, proposed a bill to make some correspondence, documents and memos public, but exempt others. It got a hearing in mid February, when it was criticized by news media and open records representatives and never made it out of committee. No other legislator proposed an alternative.

The appeal attracted friend-of-the-court briefs from the American Civil Liberties Union, national news organizations and the Washington attorney general’s office, which administers the public records act and advises state offices and officials how to apply it.

Deputy Solicitors General Callie Castillo and Alan Copsey wrote in their brief that Lanese is right. The Legislature as a whole, the House clerk and Senate secretary are covered by exemptions to the Public Records Act but individual legislators are bound by it.

The Legislature can amend the law any time it chooses, they wrote, but until it does, the law “must be understood to apply to all state offices, including the offices of individual legislators.”