Arrow-right Camera
The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

This column reflects the opinion of the writer. Learn about the differences between a news story and an opinion column.

Mike Fancher, Robert McClure and Colette Weeks: ‘Legislative privilege’ goes against the ideals of open government

By Mike Fancher, Robert McClure and Colette Weeks

Washington House Speaker Laurie Jinkins has been the chief proponent of the claim that Washington legislators are entitled to a personal “legislative privilege” that allows them to conceal some records that would otherwise be public. But the Tacoma Democrat is avoiding testifying in court about how that so-called privilege would work.

Attorneys for the Legislature have argued that Jinkins should not be required to testify in a court case brought by the Washington Coalition for Open Government and government transparency advocate Jamie Nixon. The Legislature’s attorneys argued in their filing on Tuesday that our attorney’s questions for Jinkins are “not relevant,” and that deposing Jinkins would impose “substantial and unnecessary burdens on a high-ranking state official.”

We believe the claim that legislators are shielded from following the state Public Records Act under this privilege is bogus. Nowhere is it spelled out in state law. Jinkins and her attorneys have pointed to Article II, section 17 of the Washington Constitution that reads, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

One needn’t be a lawyer to understand that this provision applies to “words spoken” and “in debate” – on the floor of the House or Senate, or in a committee meeting, in other words. There’s nothing in there about government documents.

Even if there were, it wouldn’t change the fact that the protection is from criminal or civil legal action, not disclosure of information to the public. The public has a right to know what is said. Voters are entitled to information presented in legislative debate so they can decide if the opinions of the lawmakers they sent to the statehouse represent them.

Egeler is deciding how far this purported constitutional allowance should be allowed to range. We saw Jinkins’ testimony as central to that question and to whether such a privilege is in any way workable.

The people of Washington are clearly on one side. The Legislature is on the other. More than 80% of voters surveyed in late 2023 by the Crosscut/Elway poll opposed the use of this so-called “legislative privilege.”

When the Legislature tried to exempt itself from the Public Records Act in 2018, the people of Washington revolted. Some 20,000 residents contacted Gov. Jay Inslee urging him to veto the bill, which he did.

We thought that settled the matter. But later we started hearing about legislators quietly withholding some information based on “legislative privilege” – a concept new to our state.

Jinkins, who seems to have been the prime mover, has repeatedly said that she supports the privilege. And also that she has purposely refused to release an array of information in order to “test” how far this privilege stretches. Jinkins has spoken broadly and publicly about her support for legislative privilege, including in an email that went to every member of the Democratic House caucus.

We felt her testimony was therefore important and necessary.

Unfortunately, on Friday Judge Egeler refused to grant two of our motions: 1) For the judge review the materials that Jinkins already has withheld, and see how this “privilege” is being used by legislators to wall off information from constituents, 2) To rule on whether Jinkins has inappropriately withheld information and to authorize our attorney to depose her.

We respectfully disagree with the judge’s decisions. Authorizing our attempts to question the House speaker leading the charge on “legislative privilege” would be in keeping with the voter-approved Public Records Act, which states: “The people of this state do not yield their sovereignty to the agencies which serve them. 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.”

Mike Fancher is the president of the Washington Coalition for Open Government and former editor of the Seattle Times. Robert McClure is a member of the board of directors of the Washington Coalition for Open Government. Colette Weeks is deputy director of the Washington Coalition for Open Government.