Open legislators’ emails to Open Public Records Act

Published 4:47 pm Monday, March 21, 2016

“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

And that standard holds for the most part in Washington state, except when it comes to legislators’ email.

The preamble above from the Open Public Meetings Act enacted in 1971 is often cited in court cases regarding public meetings and public records. The state Supreme Court has referred to it as one of the strongest statements of legislative policy contained in any state statute, according to the Reporters Committee for Freedom of the Press.

But the results of a nationwide exercise published last week by the Associated Press are a reminder that in Washington state there remains a class of documents where the public servants still make the call about what the people can know.

The Associated Press requested a week’s worth of emails and daily schedules from Feb. 1-7 from Gov. Jay Inslee and four leading lawmakers: Speaker of the House Frank Chopp, D-Seattle; House Minority Leader Dan Kristiansen, R-Snohomish; Senate Majority Leader Mark Schoesler, R-Ritzville; and Senate Minority Leader Sharon Nelson, D-Maury Island.

Inslee’s office fulfilled the request, releasing 39 emails and his daily schedules. But the four other lawmakers denied the request, identifying the emails and schedules as “legislative records,” including reports and correspondence that the state Public Records Act exempts from release. That’s not an exemption allowed among other public officials in the state, including those with local governments, school districts and other public agencies.

That’s not to say that lawmakers have never complied with such a request. Allied Daily Newspapers Executive Director Rowland Thompson, quoted in the Associated Press report on the exercise, said that a more specific request about a particular piece of legislation might have been answered. Still, lawmakers are not getting any less shy about using the exemption.

Schoesler defended his decision not to forward emails as a matter of policy that protects the identity of whistle-blowers and others who correspond with him. But the Public Records Act already contains exemptions that protect the identity of such people, information that is easily redacted from emails before release to the public.

Instead that policy is protecting the identities of others and the parts they might be playing in crafting or scuttling legislation that the public should know about.

Chopp told the AP that he plans to talk with fellow House Democrats about broadening the definition of legislative records to reclassify lawmakers’ email and other such documents as public records, although he didn’t think there was wide support for a change.

At a time when public officials at the city and county level are seeking solutions from the Legislature to cure what they see as abuse of the Public Records Act by those making voluminous and vague requests, legislative reluctance to put themselves under the same requirement seems less than empathetic.

But the best argument for lawmakers to open their email and other correspondence to the requirements of the Public Record Act remains that preamble from the Open Public Meetings Act: In delegating authority to lawmakers in the House and Senate, the people have not granted those public servants the power to decide what the public can and cannot know.