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Lawmakers propose limits on scope of Public Records Act for Legislature

February 3, 2019

A Senate bill proposed Thursday would largely exempt state legislators from the Public Records Act, according to the attorney who led the fight against a similar bill last year.

The latest proposal, Senate Bill 5784, sponsored by Sen. Jamie Pedersen, D-Seattle, explicitly outlines exemptions that would apply to the Legislature.

“The people of our state value both open government and effective government. This bill attempts to strike a balance between those important principles,” Pedersen said in introducing the new bill.

However, the bill is unsatisfactory, according to Michele Earl-Hubbard of Allied Law Group who represented 10 news organizations, including The Associated Press, the Washington Newspaper Publishers Association, and The Seattle Times, in the lawsuit against the Legislature stemming from last year’s attempt to change public access rules.

Last year’s bill was passed in a last-minute move after a Thurston County Superior Court judge ruled in January 2018 that the state Legislature was subject to the Public Records Act and had not been in compliance for years. Both sides appealed the decision, and litigation is ongoing in the Washington Supreme Court.

A public outcry over last year’s bill led to the intervention of Gov. Jay Inslee, who negotiated a truce between the Legislature and media organizations, which sought to force the lawmakers to adhere to the requirements of the act.

Pedersen’s bill introduces the term “legislative branch,” which he defines as including the Senate and House of Representatives, and the Legislative Ethics Board, joint committees and “any other agency that is subject to the direct control of the Senate or House of Representatives.” The legislative branch term is carried throughout the bill, as as addition to “state agency,” previously used in the bill.

In the court ruling, the Legislature was not considered an agency; however, individual legislators’ offices were considered agencies, making them subject to the Public Records Act.

“I was very disappointed when I read the bill,” Earl-Hubbard said. “This is being hyped as legislators claiming to have heard the message from the public last year.”

The proposal would distinguish legislators from other elected public officials in that they would not be subject to the same laws, she said. It would also continue to restrict information on misconduct allegations, which Earl-Hubbard says was at the heart of the media’s lawsuit.

She said it’s too far-reaching, and she “can’t see what’s left that the public would get to see.”

In response to criticism, Pedersen said Friday that changes will be made to fine-tune the bill as it moves through the legislative process.

On releasing misconduct records, Pedersen said he and his colleagues worry that a lack of protections could cause a “chilling effect” for those coming forward with allegations.

“If coming forward in this environment means everything you say can end up on the front page of The Seattle Times, you might choose to suffer in silence,” he said.

At least, said Toby Nixon, president of the Washington Coalition for Open Government, “they’re putting something on the table so we can start talking about the issues.” The bill last year was passed without discussion and on short notice.

Section 111 of the bill outlines specific permanent legislative exemptions that need to be cited in denying a request. These exemptions include:

— Investigative records that are generated before a determination of reasonable cause or dismissal of a complaint before the legislative ethics board or within the legislative branch;

— Memoranda from staff or legislators that contain legal, policy, or fiscal options, analyses, models or analytical tools;

— Records of internal caucus communications like leadership votes;

— Notes taken by staff or legislators for the use of the person taking the notes;

— Negotiations between legislators or caucuses on bills, records of how a legislator intends to vote either in committee or in a chamber of the Legislature;

— Drafts of bills or amendments that were never introduced.

SB 5784 is currently scheduled for a hearing Feb. 13.

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