Open government group says WA legislators are using ‘privilege’ to withhold public records
Washington lawmakers may be using a broad interpretation of the state constitution to exempt themselves from turning over public records, a spokesperson for the Washington Coalition for Open Government told McClatchy.
Documents obtained by McClatchy regarding the 2021 Washington State Redistricting Commission showed public record requests were denied using an exemption the Washington state Senate called “legislative privilege.”
However, George Erb, board secretary for WashCOG, told McClatchy that he believes legislative privilege is a “whole new” interpretation of an existing state constitutional provision.
“Basically it’s a new gambit to make the Legislature work outside of the realm of the Public Records Act,” Erb said.
The existing provision in the Washington State Constitution says that “no member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate,” but it does not speak specifically to public records, such as emails and texts, held by legislators.
The denial of records from the Legislature regarding the Redistricting Commission cited Freedom Foundation v. Gregoire, a 2013 ruling by the Washington state Supreme Court that said governors of the state “could assert executive privilege to justify withholding documents that would otherwise be disclosable under the Public Records Act,” according to the American Civil Liberties Union. The law applies only to the executive branch, however.
Erb said attorneys for WashCOG have looked at that ruling, but they do not think the law applies to legislators.
Additionally, although there is an existing attorney-client privilege that would exempt certain records, Erb said this latest invocation of legislative privilege is something “completely new, and it’s different from the old attorney-client privilege.”
The Senate’s denial of public records pertaining to the Redistricting Commission is just the latest attempt to potentially withhold public records.
Several lawsuits have emerged against the Washington State Redistricting Commission after state commissioners failed to adopt a redistricting map in time for their deadline in 2021.
Those lawsuits claimed that commissioners intentionally withheld and destroyed records that were subject to the state’s Public Records Act. The state later admitted in court filings that text messages were deleted by Commissioner April Sims during her time with the commission, but denied that the messages were subject to the requests.
In December, one of those plaintiffs settled for $40,000 in his lawsuit against the Redistricting Commission.
The legislative privilege exemption now has the attention of WashCOG because it has begun appearing more often.
Erb said WashCOG started seeing legislative privilege used as a reason for denial of records in the last few months. Initially, invoking legislative privilege came from the House of Representatives after several journalists and other entities filed requests that were denied, but the most recent denial of records came from the Senate.
In a press release from WashCOG sent out Wednesday, the agency noted that “the Legislature rolled out its new disclosure policy quietly, not with a public announcement but with a series of records denials that is growing longer.”
“Now we’re thinking that maybe not just one chamber is in on this but both,” Erb said. “If legislative privilege sticks, the state Legislature would be able to sweep all manner of records under this particular legal blanket.”
McClatchy reached out for comment from the communications staff for the Senate, and was referred to public records staff, who did not respond to a request for comment. McClatchy also contacted the office of the secretary of the Senate, who again referred McClatchy to public records staff.
McClatchy also reached out to the House public records staff, who did not respond to a request for comment.
Others say they have seen the privilege excuse used in other requests too.
Jamie Nixon, the former communications director for the Redistricting Commission, told McClatchy that he has been denied records under the guise of legislative privilege.
Nixon, who is also filing a lawsuit against the commission, sought public records pertaining to the failure of a legislative staff unionization bill in 2022. He said he simply wanted to know why the legislation was never brought to the floor, and why a watered-down version of the bill was instead passed.
Instead, it took months to get a response to his records request and he was eventually denied communications about the bill due to alleged legislative privilege.
When asked about patterns of noncompliance regarding public records from all Washington state agencies, Erb said he believes transparency is “deteriorating.”
“There’s less compliance today than there was before,” he said. In his 20 years on the WashCOG board, Erb said he doesn’t think he’s come across so many blatant violations of state public records laws across the board, including meeting violations.
Although public officials could potentially be prosecuted for deleting public records, Erb said civil litigation is the best tool for holding officials accountable, as is the case with plaintiffs currently suing the Redistricting Commission.
This isn’t the first time state legislators have attempted to circumvent the PRA.
In 2018, lawmakers completely bypassed the bill-making process to expedite legislation that would exempt them from the state’s Public Records Act. A bill introduced during the legislative session that year was only public for 48 hours before passing both chambers of the Legislature with overwhelming approval.
After no debate, the measure passed the Senate 41-7, and the House with 83-14. Gov. Jay Inslee vetoed the bill shortly thereafter due to public outcry.
In 2017, a lawsuit was filed by The Associated Press after the outlet was denied “sexual harassment reports, calendar entries and other documents.” Other media outlets also signed on in support of the lawsuit.
The Washington State Supreme Court voted 7-2 in favor of AP’s lawsuit in 2019 to reject “lawmakers’ assertion that they are not required to turn over daily schedules, emails, text messages and other materials related to their work,” the AP reported.
This story was originally published January 4, 2023 at 10:30 AM with the headline "Open government group says WA legislators are using ‘privilege’ to withhold public records."
