All of the arguments used by Washington state legislators for exempting themselves from public records law could be used by mayors, city council members, school administrators and all other public officials.
State Sen. Adam Kline, D-Seattle, says “legislative privilege” is not about protecting lawmakers, it’s about protecting the citizens who contact them. “There’s an implicit assumption that we’re not going to use their name.” Someone writing to a lawmaker is “going to be sorely distressed” to find out that the message can be made public, he says.
But citizens send e-mails to mayors, and those are public records. Why isn’t this alleged distress a problem in that scenario?
“I don’t see this as a cure-all for some legislator that might want to hide something,” says Pam Roach, R-Auburn, who noted in a Spokesman-Review article that she turns over e-mails and documents upon request.
It’s not a cure-all for city council members who might be hiding something either, but they still have to comply.
Roach noted that a change in the law could send legislators to their personal computers to avoid public revelations of their communications. That’s possible, but secretive public officials might want to ask Shoreline Deputy Mayor Maggie Fimia about that. When she referenced two e-mails she received on her personal computer about a zoning issue, a citizen mentioned in the e-mails demanded to see them. Fimia deleted the top lines (to, from, subject and date), forwarded the message to a public account and killed the original. The Court of Appeals held that such “meta data” are themselves public records and should be preserved. The state Supreme Court recently accepted the case for review.
In another case, a transportation board tried going offline, and a court ordered that members’ private computers could be searched.
In short, private accounts are not safe havens. The definition of “public record” is broad.
Roach also said that when a constituent is asking for help or calling for specific action, she would be uncomfortable releasing such an e-mail. But guess what? Any other public official would have to do that, so it’s still not clear why legislators see themselves or their constituents as privileged.
A lot of these concerns are matters of education. Public officials can take steps to inform constituents that e-mails are public documents. Besides, a number of controversies have been revealed by e-mail disclosures. Members of the public ought to know by now that when they e-mail a public official, that correspondence is a public record.
The only way state legislators can make the case that they alone should be above public record law is to show how their circumstances are unique. They’ve failed to do that, so they need to drop the privilege.
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