Appeals court sides with WA lawmakers to withhold public records
For the second time, a state appeals court has sided with state lawmakers in a lawsuit over whether or not legislators can use “legislative privilege” to withhold public records.
The lawsuit was filed by Jamie Nixon, an open government advocate and podcast host, and the Washington Coalition for Open Government in 2023, after it was discovered that state lawmakers were quietly using the then-legally untested justification to redact documents related to things such as the Redistricting Commission’s violation of open meetings laws, a legislative staff unionization bill and documents on the state’s capital gains tax.
The latest opinion issued Tuesday holds that “the separation of powers doctrine creates a legislative privilege with regard to certain internal legislative records” requested under the state’s Public Records Act. While the state and the Legislature contend the privilege is rooted in the state’s constitution, the appeals court did not address whether that provision exists.
Lawmakers defending the practice have maintained that the state constitution gives them grounds to withhold certain documents. The provision they cite states that “no member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate,” but does not speak specifically to documents created by state lawmakers.
Nixon and WaCOG’s lawsuit is similar to one filed the same year by Arthur West, an advocate for open government. The appeals court ruled against West in February.
An appeals judge for that case ruled that legislative privilege exists in both the constitutional separation of powers and in the state’s constitution.
Plaintiffs in both cases argue that no such privilege exists to give lawmakers the right to withhold public records and that trial courts erred in their rulings in favor of the Legislature. Both cases are likely headed to the Washington Supreme Court, though there is no timeline set yet.
In 2023, two trial court judges sided with the state and Legislature.
State legislators have long tried to exempt themselves from the state’s Public Records Act.
In 2017, a lawsuit was filed by The Associated Press and other media outlets after they were denied sexual harassment reports, calendar entries and other documents.
The Washington state Supreme Court voted 7-2 in favor of the AP’s lawsuit in 2019 to reject “lawmakers’ assertion that they are not required to turn over daily schedules, emails, text messages and other materials related to their work,” the AP reported.
In 2018, state lawmakers tried to quickly pass legislation that would exempt them from disclosing public documents after a judge ruled they had violated state law by failing to disclose records. The legislation passed without public input after lawmakers suspended the typical legislative process. After public outcry, then-Gov. Jay Inslee vetoed the bill.