Judge weighs arguments in legislative records case

OLYMPIA – Whether or not individual lawmakers in Washington state fall under statutory definitions that would require their records to be subject to more stringent public disclosure was at the heart of a two-hour hearing Friday in a case brought by a coalition of news organizations.

Thurston County Superior Court Judge Chris Lanese peppered attorneys for both the Washington Legislature and the media with numerous questions, trying to pin down why lawmakers believe they don’t have to turn over records ranging from daily calendars to work emails, and whether tweaks to state statutes over the years actually did exempt lawmakers, as they now say.

“I think you can tell by my questioning that I am somewhat skeptical that legislative offices are not subject to the public records act,” Lanese said.

The coalition, led by the Associated Press, sued in September is challenging state lawmakers’ assertion that they are excluded from stricter disclosure rules that apply to other elected officials and agencies.

Lanese said that he wouldn’t issue a ruling in the case until receiving more information from both sides, as well as a legal brief that he requested the attorney general’s office to submit in two weeks. A ruling could come within the next several weeks.

The lawsuit focuses on how the Washington Legislature interprets a 1995 revision to a 1971 definition of legislative records. Lawyers for the House and Senate regularly cite that change as a reason to withhold records, arguing that most lawmaker records are not considered public.

That is despite voters overwhelmingly passing an initiative in 1972 that affirmed the public’s right to “full access to public records so as to assure continuing public confidence in fairness of elections and governmental processes, and so as to assure that the public interest will be fully protected.”

In previous filings, attorneys for the Legislature have further argued that later changes in 2005 and 2007, when the public records act’s language and definitions were incorporated into a separate state statute separate from the campaign finance portions of the original initiative, definitively removed lawmakers from disclosure requirements. No bill report, testimony or floor debates on those measures in any of those years indicated that the Legislature’s goal was to exempt their records from disclosure.

Lanese asked the Legislature’s lead attorney, Paul Lawrence, how he defines “state office,” one of the definitions in question.

“I think the question is whether or not state office would include a branch of government,” Lawrence responded. “I think state office does not include a branch of government.”

Lanese later asked Lawrence if the individual lawmakers were subject to the public records act between 1995 and 2007.

“I think it’s an open question,” Lawrence acknowledged.

Lanese noted the lack of public debate over the changes that the Legislature said that it made.

“There appeared to be no acknowledgment in the bill digest or other easily accessible portions of legislative history indicating that the Legislature was taking the action which one might deem noteworthy and attention worthy and worthy of significant debate in committee hearings, of exempting themselves from the public records act, particularly in 2007,” he said. “That’s nowhere.”

Earl-Hubbard agreed, and pointed out that legislative lawyers keep moving the timeframe on when they say they exempted themselves.

“If the Legislature is going to exempt itself from a law that the people of the state Washington passed, it darn well better state that somewhere,” Earl-Hubbard said. “I view it as a sort of shell game.”

The Legislature has hired two outside firms to represent it in the case: Seattle-based Pacifica Law Group, which has assigned three attorneys to the case, including Lawrence and Gov. Jay Inslee’s former counsel, Nick Brown. Also defending the Legislature is Olympia-based Bean, Gentry, Wheeler & Peternell, which has assigned former state Supreme Court Chief Justice Gerry Alexander.

Besides AP, the groups involved in the lawsuit are: public radio’s Northwest News Network, KING-TV, KIRO 7, Allied Daily Newspapers of Washington, The Spokesman-Review, the Washington Newspaper Publishers Association, Sound Publishing, Tacoma News Inc. and the Seattle Times.