Here’s why state lawmakers need not abide public-records law

By Rachel La Corte / Associated Press

OLYMPIA — When rejecting requests for everything from lawmakers’ daily calendars to emails to disciplinary reports, legislative attorneys routinely cite language quietly added more than two decades ago to Washington’s public records law.

So while the records of elected officials ranging from school board members to county commissioners are subject to public disclosure — as are the records of statewide elected officials and those in state agencies — state lawmakers point to a legislative tweak passed without fanfare in 1995 as the genesis for their self-proclaimed exemption.

Former Attorney General Rob McKenna said he never liked the idea that lawmakers’ records were exempt from disclosure.

“It’s inconsistent to treat this class of elected officials differently than every other,” he said.

The 1995 language says public records held by the secretary of the Senate and the chief clerk of the House are considered “legislative records” as defined under a 1971 statute.

That 1971 definition — which predates the 1972 voter-approved public records act — says legislative records don’t include “reports or correspondence made or received by or in any way under the personal control of the individual members of the Legislature.” The amended language — which was not in several earlier versions of the 1995 bill — appeared in a “striking amendment” that was added on the House floor, meaning there was no public hearing on the language. A brief debate on the House floor at the time makes no mention of the effect the change would have on requesters. The measure ultimately passed both the House and Senate unanimously in the final days of that year’s legislative session.

Toby Nixon, a Kirkland City Council member who also serves as president of the Washington Coalition of Open Government, notes a bill report summarizing the 1995 change simply states that the statutes are amended “to specifically address access to and production of public records in the possession of the Senate and the House of Representatives.”

“It says nothing about the fact that huge swaths of legislative records were hidden from the public,” Nixon said in an email. “But we know why: legislators didn’t want the public to know what was being done.”

Washington is not the only state where lawmakers have sought to keep their records away from the public eye. The Associated Press did a nationwide survey last year, making open-records requests to top lawmakers in all 50 states, seeking copies of their daily schedules and emails from government accounts. The request was met with more denials than approval since only about a dozen states — including Idaho and Oregon — do not exempt state lawmakers from public disclosure.

Then-Democratic Rep. Marlin Appelwick, one of the sponsors of the 1995 amendment, said the issue around public records and the Legislature had been percolating for a while. The amendment, he said, was meant in part to clarify that some documents — like lawmakers’ expenses and travel records — must be released. But he said there was an equal desire to ensure that other legislator records were not disclosable.

“The motivation was that having email and mail and phone records of individual members subject to public disclosure like agencies was dangerous to the effective operation of the institution,” said Appelwick, who is now a judge for the Washington Court of Appeals.

Former Republican Rep. Jim Horn, the other sponsor of the 1995 language, said the goal was to protect the privacy of constituents who wrote to their lawmakers but also to ensure lawmakers could have more open dialogue among themselves.

“I don’t remember it being a controversial issue,” he said. “It seemed more or less it had been an undefined issue.”

Rowland Thompson, a lobbyist for the state’s newspapers, said he was told at the time the move was just an administrative housekeeping effort.

“It doesn’t say they’re not public records you can’t get somewhere else,” he said of his reading of the statute: it just says you can’t get them from the secretary of the Senate or the chief clerk of the House. The same statute defines bills and other official acts as legislative records, and those are clearly public records, he noted.

As recently as 2005, some lawmakers clearly thought they might be subject to the public records act. An amendment was introduced to a bill that year that would have specifically added “state legislative offices” to the language added in 1995. The Senate adopted the amendment, but House leaders at the time argued that the amendment would “contract public access,” and that language never became law.

Though the state Supreme Court has ruled that the governor is allowed to claim “executive privilege” as a reason to withhold documents, Gov. Jay Inslee has not claimed it since taking office, and he releases emails and calendars and other documents when requested.

“I think transparency is important,” he said.

Initiative 276, which passed with 72 percent of the vote, stated the public’s right to “full access to public records so as to assure continuing public confidence in fairness of elections and governmental processes, and so as to assure that the public interest will be fully protected.” It defines “state agency” to include “every state office, public official, department, division, bureau board, commission or other state agency.” The measure also defines “elected official” as “any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office.”

Bennett Feigenbaum, who headed up the committee behind the initiative, said while the main focus of I-272 was on campaign finance disclosure and lobbyist reporting, the language surrounding the public records aspect of it “speaks for itself.”

Allen Hayward, who was House counsel at the time of the 1995 change, said from the time he started as House counsel in 1979, the position on legislative records was always that they “weren’t subject to public records requests.” He said, however, lawmaker records were often granted on a case-by-case basis.

He acknowledged longstanding disagreement among some groups over whether individual lawmakers were ever actually covered under the 1972 initiative.

“The legislators have always taken one position, and advocates for disclosure have taken another position,” he said. If it were to ever be legally challenged: “Nobody knows what happens.”

A timeline of the public records law in Washington state

• 1971: Law is passed defining legislative records. Defines legislative records as “correspondence, amendments, reports, and minutes of meetings made by or submitted to legislative committees or subcommittees and transcripts or other records of hearings or supplementary written testimony or data thereof filed with committees or subcommittees in connection with the exercise of legislative or investigatory functions, but does not include the records of an official act of the legislature kept by the secretary of state, bills and their copies, published materials, digests, or multi-copied matter which are routinely retained and otherwise available at the state library or in a public repository, or reports or correspondence made or received by or in any way under the personal control of the individual members of the legislature.”

• 1972: 72 percent of the state’s voters approve a sweeping initiative that deals with campaign finance, lobbying and public records. The measure says that the public records provision of the act shall be “liberally construed” to promote full disclosure and “full access to public records so as to assure continuing public confidence in fairness of elections and governmental processes, and so as to assure that the public interest will be fully protected.”

• 1977: A measure that makes other tweaks to the state’ public records act removes the phrase “public official” from the definition state agency. A section-by-section summary of the bill provided by the House at the time says it revises the definition in order “to be more specific in encompassing all governmental units at each level of state and local government.”

• 1986: Washington state Supreme court rules — in Nast vs. Michels — that the Public Disclosure Act does not apply to court case files because common law already establishes access to those files and because the PDA does not specifically include courts or their case files in its definitions.

• 1995: The underlying public records act is amended to say public records held by the secretary of the Senate and the chief clerk of the House are considered legislative records as defined under the 1971 statute. The language — which was not in several earlier versions of the bill that — appeared in a “striking amendment” that was added on the House floor in the final days of session.

• 2003: Democratic Sen. Marilyn Rasmussen introduces a bill that would have specifically added “state legislative offices” to the language added in 1995. A bill report prepared at the time notes that it seeks apply the same standard for disclosure to lawmakers because “it appears that there could be a different standard for public disclosure of records in the possession of individual legislators than there is for records in the possession of the Senate and House of Representatives as institutions.” The bill never received a public hearing.

• 2005: A floor amendment offered by Rasmussen to an unrelated public records bill that, as the 2003 bill did, seeks to add “state legislative offices” to the legislative record definition is approved by the Senate. House leadership balked at the change.

• 2009: The state Supreme Court, in Federal Way v. Koenig, ruled that the judiciary in Washington is exempt from public disclosure requirements under the state’s Public Records Act.

• 2011: In its ruling in Yakima County v. Yakima Herald Republic, the state Supreme Court upheld its contention that court records are exempt from the state Public Records Act, as established in its 2009 ruling, but it ruled that court records held by other agencies are not exempt. The high court ruled in favor of the Yakima paper’s quest for access to an estimated $2 million in billing records for court-appointed attorneys in a 2005 murder case. The court found that, as a nonjudicial agency, Yakima county violated the Public Records Act when it failed to release the documents.

• 2013: In an 8-1 decision, the Washington state Supreme Court ruled that the governor is allowed to claim “executive privilege” as a reason to withhold documents from the public even though that exemption isn’t among the hundreds listed in state law. In its ruling, the majority said the governor’s office has an inherent privilege as a result of the constitutional separation of powers. Justices did provide some qualifications in their decision, saying the privilege only applies to communications made to inform policy choices. The court also said a person requesting public records can argue that the need for the material outweighs the public interests served by protecting the communication.

• 2016: State Supreme Court enacts a rule regarding public access to administrative records that confirms the right of the public to examine administrative records of the judicial branch but lays out specific exemptions, including requests for judicial ethics opinions, minutes of meetings held exclusively among judges, along with any staff, and preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended. The rule also notes that chambers records — such as any writing that is created by any judicial office or staff — are not administrative records and are not subject to disclosure. However, records created by staff outside of the judge’s chambers — such as emails court employees either sent or received from a judge — are disclosable.

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