Lawmakers introduce bill to circumvent public records ruling
By RACHEL LA CORTE
Feb. 21, 2018
OLYMPIA, Wash. (AP) — Washington state lawmakers who want to circumvent a recent ruling finding them fully subject to the state's public disclosure laws on Wednesday introduced a bill that seeks to make some of their records public but would retroactively prohibit the release of other records being sought by a coalition of news organizations.
The measure comes as lawmakers are in the midst of appealing the ruling of a superior court judge who sided with the media groups, led by the Associated Press, who argued lawmakers had illegally been withholding documents like daily calendars, emails and text messages. The bill would officially remove the legislative branch from the state's Public Records Act, but, starting on July 1, it would allow release of some correspondence, "specified information" from lawmaker calendars, and final disciplinary reports.
All four political caucuses in the House and Senate were briefed Wednesday morning on the bill that's co-sponsored by Democratic Senate Majority Leader Sharon Nelson and Republican Senate Minority Leader Mark Schoesler.
In a statement, Schoesler said that the bill "is a balanced solution that allows the public to know what is going on inside their government in a way that is both workable and protects the privacy of our constituents."
It's too late in the legislative session for a public hearing on the bill, so it will be heard before a joint work session of the Senate and House State Government Committees at noon Thursday. Unlike normal work sessions though, Nelson said public testimony will be allowed. However there will no committee vote on the bill, which will instead be pulled directly to the Senate floor on Friday. The House is expected to take it up and pass it the same day.
The move comes as the Legislature was trying to appeal directly to the state Supreme Court for direct review of Superior Court Judge Chris Lanese's Jan. 19 ruling that state representatives and senators and their offices are agencies subject to the Public Records Act.
"They are trying to take away a judgment against them by a sitting judge," said Michele Earl-Hubbard, the attorney for the media coalition. Earl-Hubbard said that if the bill becomes law and affects the results of January's ruling, litigation would continue.
But Democratic Rep. Gerry Pollet said that because the Legislature is a separate branch of government, the public records act was not intended to apply the same way as it does to other local governments.
"From a constitutional point in terms of separate branches of government, having a separate chapter in state statutes for the Legislature and public records is appropriate," he said. "On principle, I think the key is you'll be able to see who met with and lobbied your legislator, and that's a terrific principle for us to move ahead on."
Before suing in September, the news organizations filed requests for records from all 147 Washington lawmakers last year, including any documentation of sexual harassment complaints against House and Senate members.
The Legislature decided to forego using the attorney general's office and instead hired two outside law firms to defend it in court, spending more than $100,000 through the end of December.
When asked by the court to weigh in, two deputy solicitors general from the office of Attorney General Bob Ferguson wrote that state lawmakers are subject to the same rules of disclosure that cover other elected officials and employees at state agencies.
Nelson said lawmakers decided to take action instead of letting the legal case play out in part because of the growing costs to taxpayers. But she also said that if Lanese's ruling was upheld, "it's an untenable position for the Legislature."
"It puts us in a situation where we can't function," she said. "This is really a first step to try and strike a balance concerns I hear from legislators and concerns I hear about open government."
The Legislature has made a series of changes to the state's public records act in the decades since it was passed by voter initiative in 1972. The media's lawsuit focused on how lawmakers have interpreted a 1995 revision to a 1971 definition of legislative records because legislative lawyers have regularly cited that change as a reason to withhold records.
As the case worked its way through the trial court, attorneys for the Legislature further argued that later changes in 2005 and 2007 definitively removed lawmakers from disclosure requirements.
But Lanese, the superior court judge, disagreed, writing in January's ruling that "in short, rather than furthering the Defendants' arguments, the amendments to the Public Records Act over time confirm that it applies to the offices of senators and representatives as 'agencies.'"
Under the measure introduced Wednesday, exemptions from disclosure would include records of policy development, as well as any records that would "violate an individual's right to privacy." Also, any person wanting to challenge a records denial may seek review by the Senate Facilities and Operations Committee or the House Executive Rules Committee, whose rulings would be final.
Earl-Hubbard said that lack of ability to challenge a denial in the courts is one of many issues she has with the bill.
"You're supposed to have checks and balances," she said.
The measure has an emergency clause attached, which means that instead of taking effect 90 days after the end of session, like most bills, it would take effect immediately, ensuring that there could be no referendum to challenge it.
When asked if he would sign such a measure, Gov. Jay Inslee said he hadn't yet seen the bill but that he believes lawmakers "could succeed in their duties while being fully transparent like the rest of state government."
But he noted that if the measure passes both chambers with two-thirds of lawmakers voting in support, a veto would be futile, since the Legislature would just override it.
Besides AP, the groups involved in the lawsuit are: public radio's Northwest News Network, KING-TV, KIRO 7, Allied Daily Newspapers of Washington, The Spokesman-Review, the Washington Newspaper Publishers Association, Sound Publishing, Tacoma News Inc. and The Seattle Times.