Court: Washington state lawmakers are subject to records act

By Rachel La Corte / Associated Press

OLYMPIA — The Washington Supreme Court ruled Thursday that state lawmakers are subject to the same public disclosure rules that apply to other elected officials and agencies.

In a 7-2 ruling, justices rejected lawmakers’ assertion that they are not required to turn over daily schedules, emails, text messages and other materials related to their work.

The justices heard arguments in June on the appeal of a case that was sparked by a September 2017 lawsuit filed by a media coalition, led by The Associated Press and including The Daily Herald. It sought sexual harassment reports, calendar entries and other documents.

Lawmakers have long said they are not subject to the law that applies to officials across the state, from school board members and county commissioners to agency heads.

Michele Earl-Hubbard, the attorney for the media coalition, called the ruling a “huge win.”

“We have been hitting a brick wall for more than a decade where lawmakers have been arguing that somehow different rules applied to them,” she said. “We have now proven that’s not true. It was never true.”

Snohomish County lawmakers reached Thursday said they were not surprised by the ruling and are ready to respond to requests.

“I have been voluntarily releasing my records for the last year to ensure transparency and will fully comply with the Court’s ruling,” tweeted Sen. Marko Liias, D-Lynnwood. “Openness and transparency help public institutions maintain the trust and confidence of the people we serve.”

Democratic Rep. Jared Mead of Mill Creek and Cindy Ryu of Shoreline, and Republican Rep. Carolyn Eslick of Sultan don’t anticipate problems because each was subject to public disclosure rules when they served in local office.

“I work that way because I am used to it,” said Eslick, a former mayor of Sultan.

Mead, who served on the Mill Creek City Council, said it will cost some taxpayer dollars to have the staff and tools in place to handle requests.

“But it is for a good cause,” he said. “The public can see what we are doing, how we are operating and who is trying to influence the decisions we are making.”

For those who are not used to complying, it may cause a little queasiness and change how they conduct some conversations, the lawmakers said.

“I wonder if it will quash the level of innovative and creative discussions we have,” Ryu said.

The Supreme Court affirmed a Thurston County Superior Court judge’s ruling in January 2018. The judge found that while the offices of individual lawmakers are subject to the Public Records Act, the House and Senate as a whole are not. The Legislature appealed the portion of the ruling that applies to the legislative offices, and the media outlets appealed the part that applies to the House and Senate.

Following the 2018 decision, lawmakers quickly passed a bill that retroactively exempted them from the law but would have allowed for more limited legislative disclosure for things like daily calendars and correspondence with lobbyists. After a public outcry, Democratic Gov. Jay Inslee vetoed the measure.

While the media won the argument that individual lawmakers must release records, a majority of the Supreme Court justices agreed with the Superior Court that the disclosure law applies to the entities of the House and the Senate, through the House clerk and secretary of the Senate, in a much more limited way.

The Legislature has made a series of changes to the law, and lawyers for the House and Senate have regularly cited a 1995 revision to a 1971 definition of legislative records in their denials. The House and Senate currently release limited records, including travel and payroll records and reports to the Legislature.

Attorneys for the Legislature had argued that changes in 2005 and 2007 — when the public-records act’s language and definitions were incorporated into a statute separate from the campaign-finance portions of the original initiative — definitively removed lawmakers from disclosure requirements.

The Legislature, which normally would be represented by the attorney general’s office, chose instead to use two private law firms, paying about $350,000.

The attorney general’s office filed a brief before the high court stating that each lawmaker is fully subject to the public disclosure law but that the House and Senate are subject in a more limited manner. They said the law specifically defines which records must be made available for release by the House and Senate.

In a statement issued after the ruling, House Speaker-designate Laurie Jinkins said that her caucus was still reviewing the decision but believes “in open and accountable government.”

“While we have already taken action toward better access to public records, we have more work to do,” she wrote.

Twenty news organizations and open government groups signed on to three briefs in support of the media coalition, including the Washington Coalition for Open Government, the Reporters Committee for Freedom of the Press, Reporters Without Borders and the Society of Professional Journalists.

Besides AP, the groups involved in the lawsuit are The Daily Herald and its parent, Sound Publishing; public radio’s Northwest News Network; KING-TV; KIRO-TV; Allied Daily Newspapers of Washington; The Spokesman-Review of Spokane; the Washington Newspaper Publishers Association; Tacoma News Inc.; and The Seattle Times.

The case now heads back to the lower court for further proceedings, including determination of potential penalties and fees.

The Daily Herald reporter Jerry Cornfield contributed to this article.