A little more than three years ago, the Washington Supreme Court did its best to make clear what should have been obvious: state legislators are subject to the Public Records Act.
Just like every other elected official in the state.
I say “should have been obvious” because it was not then – nor is it now – accepted and understood by many lawmakers themselves, whose contortions to grant themselves exemptions from the law have been extraordinary.
In the months before the court ruled at the end of 2019, tone-deaf and self-satisfied legislators tried to rush a new law into place exempting themselves from the records law – an abuse of power that was met with media uproar and a veto from the governor.
It’s been several years, and yet the chutzpah still astounds: The members of the very body that passed the Public Records Act couldn’t accept it was supposed to apply to them.
The high court ruling should have erased all doubt, but legislative chutzpah found new channels this year, like water creeping through a stone wall.
Will another slapdown from a court help them accept their responsibility to the public? Hope looms again. The Legislature is being sued by open-government advocates over the latest get-out–of-jail-free card it has awarded itself – the practice of withholding or redacting communications and other public records under a “legislative privilege” exemption.
A court will ultimately decide, but on the face of it, legislative privilege seems … made up. Like, completely invented. It’s got a very strong “sounds good, people might buy it, let’s go with that” vibe. There is no mention of this privilege in the law, as those suing the state point out; and the legal justifications that lawmakers deploy seem very creative.
This year’s records debacle passed in relative quiet. There was some good, dogged press coverage, but little widespread attention or urgency.
But the lawsuits – one filed early in the session and another filed about a month ago – offer the chance that the latest channel through the stone will be shut down.
“It’s our money. It’s our government,” said Toby Nixon of the Washington Coalition for Open Government, one of the plaintiffs in the more recent case, at the time of its filing. “And the idea that our chosen employees think that they don’t have to show their bosses their work limits voters’ ability to make informed decisions at the ballot box.”
WashCOG and Jamie Nixon, an advocate for open government who worked on the state’s beleaguered 2021 legislative redistricting process, sued the state at the end of April in Thurston County Superior Court. An earlier suit, filed by open-government advocate Arthur West in January, also took on legislative privilege; disappointingly, the state’s attorney general’s office wrote a brief supporting the exemption.
The Public Records Act, passed a half-century ago, asserts in unqualified language that the written materials used by public officials belong to the people. It’s the law under which citizens can obtain information about the operation of their city and county governments, police departments and sheriff’s offices, state agencies and local districts … every public agency and official that is meant to work for the people.
It’s the single strongest weapon against official secrecy that citizens have.
The law opens with a stirring affirmation of purpose – at least it’s stirring if you’re a fan of the ultimate authority of the citizen.
“The people of this state do not yield their sovereignty to the agencies that serve them,” it reads. “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
Passing that law was a proud moment for the state’s lawmaking body.
Evading it has not been.
This year’s evasions were particularly tricky. In their complaint, Nixon and the open government coalition cite several records requests they filed simply to determine how often legislative privilege was being cited. The suit claims that, among various dodges and misdirection, the Legislature delayed releasing records about the use of legislative privilege … by citing legislative privilege.
It’s a heck of a privilege. The suit notes that the leadership of the Senate declared it would not claim the exemption; the House did not. Legislative leaders claimed they had not asserted the privilege – only to have it emerge that records involving their communications had, in fact, been redacted or withheld.
House Speaker Laurie Jinkins told reporters during the session that she didn’t think she had asserted the privilege. But even at the time of that statement, the lawsuit claims, between 20-30 records that had been released to Nixon in a folder labeled with Jinkins’ name were blacked out, citing that very exemption.
Among the withheld communications were those involving local lawmakers Marcus Ricelli and Mike Volz. It is not always clear whether individual lawmakers or the House records officer made the determination. But it doesn’t really matter.
The lawmakers’ claim for the privilege rests on a case that asserts a legal records exemption for the executive branch. It does not address the Legislature at all. It also rests on a constitutional protection against lawmakers being penalized criminally or civilly for “words spoken in debate.”
The law requires public officials to cite specific exemptions for withholding records. Legislative privilege has no such basis – it’s a “because we said so” claim. The plaintiffs challenging the exemption say it has been asserted on “an arbitrary and capricious basis without any limitation to the scope of their asserted discretion or claimed privilege. No such absolute or conditional privilege was ever authorized by the people when enacting the Public Records Act or by the Legislature through legislation.”
The courts should put an end to it and once again elevate the privilege of the public over that of the people it elects to serve.
And then we’ll all have to keep a close eye on where the water tries, once again, to creep through the stone.
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