Lawmakers’ public-records exemption isn’t justified

It’s always been odd that Washington state legislators are exempt from the state’s Public Records Act, because that law – adopted overwhelmingly by the voters in 1972 – doesn’t call for special treatment.

But Associated Press reporter Rachel La Corte shed light on the anomaly in an article in Thursday’s paper. She traces the exemption to the 1995 legislative session, where language to a records bill was tweaked on the House floor. This amendment was never subject to a public hearing, but it forms the legal basis for the refusal to turn over some public records, such as correspondence.

At the time, Rowland Thompson, a lobbyist for newspapers, was told the bill was merely some administrative housekeeping, the AP reported.

Obviously it was more than that, and lawmakers didn’t want to advertise the ramifications. So why was it done? La Corte talked to the two sponsors of the amendment.

Then-Democratic Rep. Marlin Appelwick said, “The motivation was that having email and mail and phone records of individual members subject to public disclosure like agencies was dangerous to the effective operation of the institution.”

Former Republican Rep. Jim Horn said the goal was to protect the privacy of constituents and to foster greater communication with each other.

But mayors, city council members, county commissioners, school board members and other public officials have to turn over their correspondence. Similarly, they have constituents and colleagues with whom they communicate.

The exemption wasn’t extended to them. If it were, it would’ve been a full-scale gutting of the Public Records Act.

Toby Nixon, president of the Washington Coalition of Open Government, told the AP that the bill report on the amended statute “says nothing about the fact that huge swaths of legislative records were hidden from the public. But we know why: legislators didn’t want the public to know what was being done.”

There is no good reason for lawmakers to carve out this exemption for themselves. Every argument they offer would apply to any other elected official. Oregon and Idaho do not exempt legislators and their legislatures are able to operate effectively.

“It’s inconsistent to treat this class of elected officials differently than every other,” former Attorney General Rob McKenna told the AP, noting that he’s never liked the idea of the exemption.

The state Supreme Court has ruled that the governor can invoke “executive privilege” in turning down some public records requests, but Gov. Jay Inslee has waived that privilege and released requested emails, calendars and other records.

Legislators could do the same, but the Seattle Times and Northwest News Network recently requested some correspondence of House and Senate leaders and were turned down. They couldn’t even get an explanation.

On the other hand, what could legislators say when they’re defending the indefensible?