State’s public records laws apply to legislators, Supreme Court rules
Washington state legislators must comply with the public records law, the state Supreme Court ruled Thursday in a decision that could have a dramatic effect on the ability of residents and the press to hold government accountable.
But the House and Senate administrative offices and the Legislature as a whole are not “state agencies” as defined in the public records law and are not subject to the same expansive disclosure requirements that cover, for example, the State Department of Social and Health Services, the high court held.
How that distinction will affect transparency, such as the release of investigative reports of lawmakers and documents that legislators don’t want the public to see, is expected to play out over the next several months and perhaps years.
Toby Nixon, president of the Washington Coalition for Open Government and a former state lawmaker, said he thinks the “vast majority of records that are of interest to the public” will be open under Thursday’s decision. The coalition is a nonprofit group that advocates for access to public records.
“Because investigations generally include legislators, and certainly legislators review the results of the investigation, at some point they will become public records that are disclosable,” said Nixon. “...If a legislator’s records are being held on their behalf by the clerk or the secretary in computer systems that are controlled by the Legislature as a whole, that won’t be a shield to those records.”
In its 7-2 opinion, the high court upheld the 2018 decision by Thurston County Superior Court Judge Chris Lanese.
The ruling is a split decision for the Legislature and a coalition of media organizations led by the Associated Press and including The News Tribune, which in 2017 filed a lawsuit alleging lawmakers were violating state law by not disclosing records to the public such as emails, appointment calendars and sexual harassment claims.
The Legislature’s position has been the House and Senate are required to release only documents such as “budget and financial records, personnel leave, travel and payroll records; records of legislative sessions; reports submitted to the Legislature ...”
The high court’s seven-member majority agreed with that position, saying the chambers are subject to the public records law in a limited way.
During oral arguments in June, an attorney representing the Legislature told the justices that Lanese incorrectly applied a 1995 state law amendment that defined “state office” to include “legislative offices.” That definition spoke solely to campaign finance and ethics laws and should not be used to determine disclosure requirements under the records law, said Paul Lawrence, an attorney with Seattle-based Pacifica Law Group.
The Supreme Court disagreed with the Legislature’s argument, saying individual legislators are subject to the public records law and must release a a wide variety of records.
The high court’s decision noted that from Jan. 25 to July 26 of 2017, media members submitted 163 public records requests to the Senate, the House, and the Legislature as a whole, as well as the offices of individual legislators.
Senate and House counsel responded to the public records requests on behalf of the Secretary of the Senate and the Chief Clerk of the House, stating that the Legislature did not possess responsive records because of how the public records law applies to the Legislature. In response to other requests, Senate and House counsel and individual legislators voluntarily released limited records with redactions, the high court said.
The lawsuit from the media coalition followed, filed against the Legislature, the House and Senate and four legislative leaders in their official capacity.
After Judge Lanese’s ruling, the Legislature responded last year by passing a bill to retroactively say the Public Records Act does not cover the legislative branch. As newspapers published front-page editorials against the bill and a public outcry ensued, Gov. Jay Inslee vetoed the legislation.
Shortly after the Supreme Court opinion was released Thursday, speaker-designate Laurie Jinkins, D-Tacoma, said in a written statement: “While we have already taken action toward better access to public records, we have more work to do. We are still reviewing the Court’s decision to determine its specific impacts, and will work with our colleagues in the House and Senate to move forward on implementing the decision to ensure transparency in government for Washingtonians.”
Senate majority leader Andy Billig, D-Spokane, added: “We are still reviewing the court’s decision, but as I’ve said throughout this process, I believe the Legislature should continue to take steps toward greater transparency. Long before this decision came down, we started establishing an institutional infrastructure to help respond to public records requests, store documents and take other measures to increase public access.”
The voting by the justices was complex.
The opinion was written by Justice Susan Owens. Three justices concurred — Chief Justice Mary Fairhurst, and Justices Charles Wiggins and Barbara Madsen.
Three justices agreed that individual legislators are subject to the public records law, but disagreed with the conclusion that the Legislature, House and Senate administrative offices must comply in a limited way. They are Justices Debra Stephens, Charles Johnson and Mary Yu.
Two justices — Sheryl McCloud and Steve Gonzalez — argued that the public records law applies narrowly to both legislators, the Legislature, House and Senate.
This story was originally published December 19, 2019 at 9:16 AM with the headline "State’s public records laws apply to legislators, Supreme Court rules."
