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Legislators ‘not special’ when it comes to public records law, media lawyers say

October 10, 2018

OLYMPIA – Washington law has hundreds of exemptions to the Public Records Act that would likely allow legislators to protect sensitive information, attorneys who specialize in media law told a task force.

“Legislators are not that special,” attorney Kathy George told members of the task force Tuesday. “Other policy makers live with transparency.”

City and county officials, who are covered by the records act, deal with a similar range of issues and are able to sort through the various exemptions to comply with public requests, she said.

When voters overwhelmingly passed the 1972 initiative that created the Public Records Act, there were 10 exemptions, George said. Over the years, the Legislature has added exemptions in that law and other statutes, and now there are 523 exemptions.

The task force – which includes eight legislators, three representatives of the news media, three members of the public and an open government advocate – is exploring possible guidelines for a law governing legislative records. It was formed after news organizations led by the Associated Press and including The Spokesman-Review successfully sued the Legislature over members’ refusal to release requested records.

With a state Supreme Court appeal expected, the Legislature moved with uncharacteristic speed and ignored its standard procedures to introduce and pass a bill exempting itself from the Public Records Act and setting up its own procedures and exemptions. Facing pressure from the public and the state’s news media, many lawmakers reversed course and asked Gov. Jay Inslee to veto a bill they had passed just days earlier with overwhelming majorities in both chambers. The task force was set up to discuss the issue and produce a report for the 2019 session.

Sen. Randi Becker, R-Eatonville, a task force member, repeated concerns that she and other lawmakers have frequently cited, that people who call or write her office for help with a problem or a personal tragedy might not do so in the future if those records are public.

“I don’t know of anybody who said ‘I expect the information I’m sharing with you to be a public record,’” Becker said. “I feel very strongly that people have individual rights. They have expectations that as a government official, when they reach out to us with sensitive things, we’re not going to run it out to the newspapers and exploit or utilize that in the wrong way.”

Eric Stahl, another attorney who handles public records cases, said that’s really no different than city council members, county commissioners or school boards have dealt with for years with problems reported by their constituents. The Legislature could devise an exemption, but he urged them to keep it narrow and disclose the publicly relevant information.

Sen. Curtis King, R-Yakima, said the fact that exemptions have grown since 1972 isn’t a completely negative thing, because things have changed over the decades.

“As a legislator, I don’t think I’m special,” King said. “I remember who my boss is, because they are my constituents.”

King likened lawmakers ability to with hold information about constituents who come to them with private problems to newspapers that write articles with anonymous sources.

“Don’t you think the public should know what that anonymous source is, so the public can know whether it’s factual or nonfactual?” he asked. “If the media had to disclose those sources, they wouldn’t have those sources.”

At the first task force meeting last month, an Ohio State University law professor told the group he thought some records could be exempt from disclosure under the state constitution to protect the legislative process.

But Bruce Johnson, a Washington attorney, said Washington’s constitution was drafted by people who were leery of granting the Legislature too much power. Lawmakers are protected from civil or criminal actions for things they say during floor debates or committee hearings, but that doesn’t give them a blanket exemption from releasing documents under the Public Records Act, he said

If lawmakers want to protect certain types of documents, such as a letter from a whistle blower, they could create a specific exemption for that, Johnson said.

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