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Wednesday, February 26, 2020  Spokane, Washington  Est. May 19, 1883
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News >  WA Government

High court to decide if secret legislative records are a ‘black hole’ or a needed balance

UPDATED: Tue., June 11, 2019

The Temple of Justice, on the Capitol campus in Olympia, where the Washington Supreme Court hears arguments. (The Spokesman-Review)
The Temple of Justice, on the Capitol campus in Olympia, where the Washington Supreme Court hears arguments. (The Spokesman-Review)

OLYMPIA – Allowing the Legislature to exempt certain important records about its deliberations and investigations will result in a “black hole” for information important to the public, an attorney for the state’s news organizations told the Washington Supreme Court on Tuesday.

But the public’s desire for government transparency must be balanced against needs for government efficiency and privacy, and that’s what the Legislature did with amendments to the state’s Public Records Act between 1995 and 2007, an attorney for lawmakers said.

Supreme Court justices grilled attorneys for both sides of the legal battle between a coalition of state news organizations and the Legislature. The case that may turn on something as basic as whether individual legislative offices are “state agencies,” which would mean they are covered by the public records law, or changes in the law mean they aren’t despite not specifically saying so.

The Legislature is not an agency, attorney Paul Lawrence said. It’s a branch of government that creates agencies.

Justice Steven Gonzalez asked why legislators didn’t just say the Public Records Act didn’t apply to them, if that’s what they meant in 2007 when amending the law.

“Clearly, it’s been confusing to people who try to construe what it means after the fact,” Gonzalez said.

Lawrence denied there’s been any confusion if a person looks at the text and the amendments.

“I don’t recall seeing anything in the paper saying the Legislature’s exempting themselves from the Public Records Act,” Justice Susan Owens said.

“Maybe you should ask the media that’s over there,” Lawrence said, indicating a row of reporters covering the hearing. “It wasn’t something that was hidden.”

But Michele Earl-Hubbard, who represents the coalition of news organizations seeking the records, said there was no notice to the public that’s what the Legislature was trying to do in 2007 when it rearranged portions of the public records and campaign finance laws.

“Not once did they say, by the way, by doing this we’re now exempting an entire branch of government” from the Public Records Act, she said.

When the public knew the Legislature was trying to do that last year, it created a huge outcry, Earl-Hubbard said. “When they tell us what they’re doing, the people react.”

The Supreme Court has ruled the Public Records Act doesn’t apply to court records, and Justice Debra Stephens asked if this case has similarities.

In those cases, court proceedings are open and the court files are available to the public faster than through a public records request, Earl-Hubbard said. That’s not true with some legislative records, she said.

“In these cases, we truly would be falling into a black hole,” Earl-Hubbard said.

Plenty of records of legislation and amendments are available in archives and online, Stephens countered: “It doesn’t sound like a black hole.”

But records of workplace harassment complaints, emails, texts and calendars – all of which would have to be released by local governments and other state officials – are being withheld by the Legislature by claiming it’s exempt from the law, Earl-Hubbard said. There is no way to get those records of “utmost public interest.”

Two years ago, Olympia-based reporters for the Associated Press, The Spokesman-Review and other news organizations filed requests for public records with all 147 legislators and House and Senate leadership. Among the documents they sought were calendars, schedules of meetings and investigations of misconduct by legislators or staff.

Except for a few individual legislators, the requests were denied, with administrative offices for the two chambers claiming the documents were exempt from the Public Records Act.

With other media outlets joining the dispute, the news organizations sued, contending legislators were subject to the initiative passed by voters in 1972 that set up that law, and amendments passed since them do not exempt them.

In January 2018, Thurston County Superior Court Judge Chris Lanese ruled that while the administrative offices of the Legislature have exemptions through various amendments to the Public Records Act, individual legislators do not. They had to comply with the records requests like other elected or appointed government officials in Washington would.

Lawmakers attempted to undercut Lanese’s decision a few weeks later with new legislation, suspending normal rules and quickly passing a bill with no hearing and little debate. The public outcry and front-page editorials in many of the state’s newspapers prompted many legislators who initially voted for the bill to urge Gov. Jay Inslee to veto it, and he did. A special task force of legislators, open government advocates and media representatives failed to agree on firm recommendations later that year, and an attempt at a new bill died in a Senate committee in February.

While the lawsuit worked its way through the courts, legislators have been forced to resign because of improper conduct; more than 175 women signed a letter alleging sexual harassment or improper conduct on the part of legislators, staff or lobbyists; and the Legislature has passed a new code of conduct with a process for handling complaints.

The Supreme Court typically does not set a deadline for deciding a case. Typically, it hands down a decision in a few months.

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