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Opinion >  Column

Shawn Vestal: No special treatment deserved by Legislators when it comes to open records

In this Feb. 7, 2018, file photo, Washington state representatives work on the house floor at the Capitol in Olympia, Wash. (Ted S. Warren / AP)
In this Feb. 7, 2018, file photo, Washington state representatives work on the house floor at the Capitol in Olympia, Wash. (Ted S. Warren / AP)

It’s the hardest thing for any of us to hear, let alone believe: You just ain’t that special.

How can we ever accept this idea, living as we do at the center of our own universes? More to the point, how can we expect state legislators to accept the premise that – when it comes to their obligations under the Public Records Act – they do not deserve many, many special exemptions?

How can we hope they will acknowledge that the problems they face with regard to public records are almost entirely the same problems – with the same obvious, apparent, already-existing solutions – that every small-town mayor and county commissioner and police department deals with?

How can we persuade lawmakers that, on this question, they just ain’t that special?

If last week’s gathering of the Public Records Task Force is any indication, we can’t.

“I just want to reiterate that a lot of what we do is different from the other agencies,” said Sen. Randi Becker, R-Eatonville, during a task force meeting in Olympia, “and a lot of what we get in way of emails or texts or phone calls are different requests and types of issues than other agencies. I want you to remember that.”

They’re different, everyone. We should all remember it. Because when the Legislature comes up with a response to the court order that it must finally follow the law and treat its records as public property, that assertion of a special status will almost certainly be relevant.

Now, maybe that won’t actually happen. Maybe we don’t need to prepare for another rousing round of Let’s Let Ourselves Off The Hook. But based on everything I’ve heard, from lawmakers on the task force and in several conversations, the smart money is on legislation that produces some special exemptions for legislators, exemptions that will allow them wider latitude to keep secrets than other elected officials have.

Because they’re special.

From the start of this, that has been the underlying presumption. When a judge ordered the Legislature to begin following the Public Records Act – in response to a lawsuit from the media organizations – there was an immediate response from lawmakers that it was outlandish, outrageous, out-of-bounds, impossible.

There was an immediate upswell of bad-faith arguments that continue to this day. For example, lawmaker after lawmaker posed the hypothetical problem that they would each have to run their own records office.

Can you believe that! Scores of different offices, each figuring out how to respond to requests, sorting through exemptions, buried under requests? It’s madness!

Of course, it has always been clear that a single office handling requests for all lawmakers would be the obvious way to go. The obvious, clear, unambiguous, not-at-all-hard-to-understand solution.

Lawmakers also continually raise the problem of people emailing them private, personal information – and are just as continually informed that exemptions for such cases already exist in the law.

It’s almost like they’re raising these problems for some reason other than solving these problems.

This week’s meeting of the task force, which is comprised of legislators, media representatives and others, was a chance for lawmakers to hear from some experts in the PRA – a couple of former reporters turned attorneys. The message from them was very simple and straightforward: The Public Records Act and subsequent exemptions protecting certain kinds of information have, for decades now, almost certainly already dealt with the concerns that lawmakers keep raising.

If further privacy protections are needed, lawmakers can pass them, but the law calls for presumption of openness, and all exemptions should be narrow.

“Legislators are not that different from other policy makers,” Kathy George, an attorney and former statehouse reporter, told the task force last week. “The Public Records Act applies to city and county and court and school district and library district and a variety of other agencies that have policy making processes. And as has already been noted, city council members and county council members deal with a very similar range of issues.”

Lawmakers are very concerned about the privacy of their emails, and protecting constituents’ identities if they communicate with legislators. But communications that lawmakers have while shaping legislation are, of course, supremely relevant in terms of the public’s right to understand how their government operates.

And anyone who’s ever received a public record knows that private, personal information is protected by exemptions – exemptions that manifest themselves as big black redactions on the records when they’re turned over.

It happens all the time, with every records request, from every agency.

The reason legislative communications should be public is so simple one wonders at the lawmakers’ demonstrated lack of understanding. The public should have access to a clearer picture of what’s behind the doors at the sausage factory. Period. Who’s talking to whom. Who’s influencing whom. How lawmakers are carrying out that portion of their public duty. What they’re saying compared to what they’re doing.

Lawmakers, meanwhile, keep talking about their need to communicate in private. They keep insisting their ability to speak freely and honestly will be hampered if the public can learn what they say when they speak freely and honestly.

The Public Records Act exists precisely to break through such barriers of frankness. It exists because carefully crafted public statements are no substitute for an open view of the process, which is owned by the people and whose gears should be on full display.

“I don’t see a principled reason to treat the legislator different from other agencies,” Eric Stahl, an attorney and former reporter, told the task force last week.

I bet the lawmakers can see one, though, and I bet I can guess what it is: They’re special.

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