After four meetings over four months on how the Legislature should respond to public requests for public records, a special task force has found itself about where it started back in September.
That is, the legislators chosen as designated hitters for their colleagues argued the Legislature is special and can’t possibly provide all the records that other elected officials in cities and counties do under a voter-approved state law.
Task force members drafted to represent the public and the news media were also in about the same place they’d been since a group of news organizations sued the Legislature and won the first round of a case for some of those records. That is, the Legislature should just follow the Public Records Act already on the books. If there’s a special circumstance that requires a special new exemption, they know who is in charge of creating new exemptions.
In an effort to have something to show legislators when they return to Olympia in January, the task force settled on a series of recommendations. The first one – “The Legislature should strive for greater transparency” – sailed through.
Some might say that’s because it’s a no-brainer, others because they could hardly strive for less transparency, and still others might point out that “strive” is one of those squishy words, sort of like “try.” As Yoda told Skywalker, “Do. Or do not. There is no try.”
Things broke down a bit on No. 2, which might seem a bit innocuous: “There is a need to protect certain types of constituent information.”
“Certain types” is pretty vague, and constituent could mean a person with a problem or a big corporation. But legislators on the panel made the point repeatedly that they get all kinds of requests for help from constituents that contain personal information that a requester might not want made public.
So just use the Public Records Act, which has more than 500 exemptions, as a starting point, said Ray Rivera of the Seattle Times, and make adjustments that seem warranted. Small adjustments, non-legislators said. But don’t forget cities and counties get the same kind of requests and they should get those adjustments, said Candace Bock of the Association of Washington Cities. This is about legislative records, said Sen. Curtis King, the task force co-chairman.
They settled on: “There is a need to protect the right of privacy of individuals in their communications with legislators, beginning with the existing exemptions in the Public Records Act and adding narrowly crafted exemptions as needed.” If the Legislature follows that recommendation, it might not be a loophole large enough to drive a tank through, but certainly big enough for a Prius.
The knottiest recommendation had to do with what lawmakers call “the deliberative process” – that time when legislators go behind closed doors and work out deals on budgets and other controversial bills.
Lawmakers of all stripes are protective of such sessions because they say it allows everyone to be free to say their piece without fear of reprisals from the public. As Toby Nixon, a city councilman as well as an expert on open records noted, “whacky things are said.”
King, who has negotiated transportation budgets for years, said he sometimes has to agree to things that won’t be popular in his district to get a final deal. “Someone back home is going to say ‘You sold us down the river,’ ” King said.
To which Rivera suggested King was going to have to explain those decisions to his constituents anyway, when they see the final deal. No one’s recording the discussions, but people deserve to see the written offers that go back and forth, he said.
At some point, the deliberations are over and the public deserves transparency when it’s over, added Diana Kramer, who oversees student publications for the University of Washington.
“The transparency when it’s over is what we’ve decided,” King said.
It seems only fair to point out that legislators selectively leak information from negotiations, even sensitive budget talks, once they are over. Two years ago, Republicans angry about a veto of a tax break in the 2017-19 operating budget leaked information that they thought Gov. Jay Inslee was reneging on a deal. Inslee’s staff went to great lengths, complete with a timeline and breakdown of the pre-dawn negotiations, in an effort to prove there was no such deal.
Who was right? We’d have to see the records to find out.
Legislators also complain about the lack of transparency for public employee union contracts, which are negotiated by the governor’s staff outside their presence. The governor’s response: You see the final product, and can vote it up or down.
The task force couldn’t agree on that topic, so it decided to say that in the report, and not make a recommendation.
But that’s OK, because the important thing to remember about recommendations is they’re mainly a way of providing cover to people who may or may not like them. Lawmakers can write a bill based on the ones they like and say “See! This is EXACTLY what the task force wanted us to do.”
And they can shrug off anything else by saying, “It was just a recommendation.”
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter.