Washington Supreme Court says Lawmakers are not above Public Records Law

• The Washington State Supreme Court ruled in December that lawmakers are not exempt from the state’s public records law.
• State lawmakers, despite once exempting themselves from public records law, now claim that they will not oppose the ruling and are committed to greater transparency.
• Less than two months after the ruling, there has already been a noticeable spike in public records requests directed at state lawmakers.
  

A big win for public records access in Washington

Last December the Washington State Supreme Court issued a landmark ruling addressing an unusual and conspicuous gap in the state’s public records law.

With a 7-2 majority, the court found that Washington’s Public Records Act (PRA), a citizen initiative passed by voters in 1972, applies to state lawmakers just like it does to every other public official.

The ruling is significant because state lawmakers have long argued that the PRA, which requires the release of most government records upon request, doesn’t apply to them. As a result, in recent years the legislature has withheld documents such as investigations into complaints of sexual misconduct against lawmakers and disciplinary actions taken against them, as well as more commonplace records like copies of their government emails, work-related text messages, and official calendars. 

“If, as the Legislative Defendants argue, individual legislators’ offices were not ‘agencies’ subject to the PRA’s general public records disclosure mandate, then ostensibly neither would be the governor’s office,” nor other executive-branch agencies, Justice Susan Owens wrote in the majority opinion.

The case goes back to September 2017, when a group of 10 media organizations led by the Associated Press filed a lawsuit over the Legislature’s practice of withholding documents by considering itself exempt from the PRA.

When a Thurston County Superior Court judge sided with the media coalition in several major aspects of the case, state lawmakers promptly moved to invalidate the court’s decision by passing a bill explicitly exempting themselves from the PRA.

This bold power grab sparked outrage among citizens and media outlets and prompted a flurry of front page editorials calling on Washington Gov. Jay Inslee, a Democrat, to veto the bill, which he did. In the meantime, the original lawsuit began working its way up to the state Supreme Court.

Greater transparency — with an asterisk

There’s a nuance to the state Supreme Court’s ruling, however. While the majority did agree that individual legislators are not excluded from the state’s public records law, it did not apply the same provisions in the law to the state House, Senate, and Legislature as institutions. This means those seeking public records will have to go to individual lawmakers themselves rather than sending their requests to a central repository of the offices of the House clerk or the Senate secretary.

Some critics like Michele Earl-Hubbard, a lawyer representing the media organizations who brought the case, worry this legal distinction may result in a “black hole” to obscure important documents like misconduct reports. She is also concerned that some investigative records could remain out of the public’s reach if they are only ever left in the hands of staffers and don’t make their way to lawmakers’ offices. 

“That’s not recognizing the will of the people that passed this law, and, I believe, not recognizing the state of the law as it stands today,” Earl-Hubbard said.

The court’s majority opinion, however, said such concerns are “overblown.” 

“The standard governing whether an entity must disclose a public record is whether the record requested is “prepared, owned, used, or retained” by that entity, not simply whether that entity possesses the record at the time of the request,” Owens wrote.

However, Justice Debra Stephens wrote a separate opinion in that ruling warning of the potential that sexual harassment and misconduct reports could be “consumed by the very ‘black hole’ the PRA meant to avoid.”

State lawmakers, despite their earlier attempt to exempt themselves from the PRA, now insist they will not oppose the ruling with any more legislation and are committed to greater transparency.

During the AP preview for the Washington state legislative session that started January 13, Senate Democratic Majority Leader Andy Billig (Spokane) said his own office is responding to public records requests. He added that he did “not expect legislation related to the Legislature” and the PRA.

“Request away,” said House GOP Minority Leader J.T. Wilcox (Yelm). “I’m happy to comply.”

Lawmakers move to comply

There will be plenty of opportunities in the next year or two to test the newly litigated limits of transparency and find out whether fears of a “black hole” really are overblown. In the wake of the court’s December ruling there has already been a noticeable spike in public records requests directed at state lawmakers. According to the AP, the state Senate has received at least 35 requests, a significant increase from the 20 they received in all of 2019. The House received 43 requests in December, up from nine in December 2018. And as of January 21 they had already received 40 requests.

To keep up with the demand, Secretary of the Senate Brad Hendrickson said the Senate will hire a second public records officer and work with the attorney general’s office and Senate attorneys to create a records retention policy consistent with that of the House. Chief Clerk of the House Bernard Deansaid the House may also hire an additional public records officer.

Other reforms are in the works as well. Dean told the AP that several lawmakers are now using legislative cell phones rather than personal cell phones for work to keep better public records. Many lawmakers in both chambers are scaling back their use of hard copies to make it easier to retain documents by asking lobbyists to send digital copies of documents that would otherwise be printed out.

“It centralizes the record keeping,” Hendrickson said.

Last week lawmakers in both the House and Senate received mandatory training with attorney general staff about the PRA to ensure that they remain compliant.

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Image Credit: Photo by Benjamin Massello on Unsplash