There’s a fascinatingly circular argument the attorneys for the Washington Legislature are making for why lawmakers should be allowed to keep the records of their activities secret from the public.
Simplified, it goes like this: The people who write the laws wrote laws exempting themselves from the laws, so the laws they wrote don’t apply to them.
“Consistent with the principles of separation of powers, the State constitution leaves internal operations of the Legislature to the Legislature,” the recent filing by the Legislature’s legal team argues.
And the Legislature, when it comes to the 45-year-old sunshine law that Washingtonians passed by a landslide, has simply exempted itself from the rules requiring the government to do its business in the light of day.
So if you want to know which lawmaker is, say, eating with which lobbyist before which vote – never mind. If you’re wondering what campaign donor emailed which legislator when they were cooking up their education plan – don’t worry your little head about it.
If you’re curious how the Legislature has handled harassment complaints, or want to know who weighed in when a bill was being amended, or how your hometown representatives spend a particular day during the session – all information you would be legally entitled to know about your city council member or county commissioner or mayor – well, tough.
Lawmakers are exempt from the public records law.
Because of laws they wrote exempting themselves from the public records law.
This is a large part of the snake-eats-its-tail case the state is making in response to a lawsuit brought by news organizations, including The Spokesman-Review, over access to legislative records such as the calendars of lawmakers, emails to and from legislators, and harassment complaints against members of the Legislature. The “plain law” is that lawmakers are treated uniquely by the Public Records Act, the attorneys representing the Legislature argue.
They call this the “evolution” of the act, an evolutionary process arising entirely from lawmakers themselves.
This is extraordinarily convenient for secret-keeping – and the corrosive appearance of it – among the members of the most important legislative body in the state. The people who decide how billions and billions of your dollars are spent operate with a unique degree of exemption from the letter and the spirit of the Public Records Act, which broadly asserts the government and its operation are to be made as transparent as possible for citizens.
By a 3-1 margin, Washington voters in 1972 approved Initiative 276, which laid out the groundwork for an expansive statewide policy regarding the rights of the public to access information about the operation of its elected officials and government. It created the state Public Disclosure Commission and the initial requirements for reporting campaign donations, and making the records of internal government operations available to the public.
The initiative was expansive and absolutely clear: It defined a public record as any written document “relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.”
It also defined a “state agency” as including, “every state office, public official, department, division, bureau, board, commission or other state agency.”
Except the Legislature? Except the Legislature.
Lawmakers started watering down the law rather quickly, and in subsequent years removed the “public official” language and made other self-dealing changes. The current defense argues that the Legislature is not a “state agency,” and the requested records are not public. The Legislature has also adopted secrecy by practices – the lawsuit by the media organizations argues – that exceed the letter of the watered-down law, by simply ignoring requests that it should be obliged to fulfill.
Of course, there is a simple solution to this, and Rep. Paul Grave, a Fall City Republican, has hit on it: Legislators could pass legislation un-exempting themselves from the law. Graves said he’ll propose just that in the coming legislative session.
“We’re government employees, we’re being paid by taxes and the people of the state deserve to know and have access to the information that their tax dollars are paying for,” Graves said in an Associated Press story.
Graves is absolutely correct, of course, and unless I miss my guess, his bill will die a rapid, quiet death in Olympia.
Meanwhile, the case moves along in Thurston County Superior Court, with the next hearing scheduled for Dec. 22. There are, no doubt, legal arguments to be made here. Maybe even legal arguments that are winners for the Legislature.
If that’s the case, the Legislature will have itself to thank.