Lawmakers get ready to abide by public record law

OLYMPIA — Many state lawmakers from Snohomish County are anticipating a day in the not-too-distant future when they will be required to make their emails, calendars and other documents publicly available like other elected officials.

A simmering legal battle with news organizations has wrought one judicial ruling that the 147 citizen legislators must comply with the state’s Public Records Act.

Meanwhile, as the case moves through the appeals process, leaders and lawyers of each caucus in the House and Senate are quietly working on a legislative fix to define how the law would apply to lawmakers and what types of records might be exempt.

A goal is to produce language top Democrats and Republicans in each chamber can support, thus making for a smoother trip through the Legislature. Three bills wrestling with this issue died in committees last week, leaving legislators to wait and see if this “four-corner” effort bears fruit.

“There is a lot of constructive dialogue taking place among the four caucuses on this,” said House Minority Leader Dan Kristiansen, R-Snohomish.

He declined to share details and said he could not predict if it will be successful.

“I don’t know,” he said. “I can’t tell.”

Part of the impetus is the recent setback in the lawsuit brought by a coalition of news organizations led by The Associated Press and including Sound Publishing, parent company of The Daily Herald.

That suit asserted the state’s public records law, passed by initiative in 1972, applies to individual lawmakers as it does to the governor, attorney general and other state and local elected officials. The organizations filed requests for records from all 147 Washington lawmakers last year, including daily calendars, text messages and documentation of staff complaints against House and Senate members.

Attorneys for the Legislature contend lawmakers exempted most of their records from disclosure through a series of changes in the law in past years.

The legal scrap has focused on how lawmakers interpreted a 1995 revision to a 1971 definition of legislative records. Legislative lawyers have regularly cited that change as a reason to withhold records. Separate legislative attorneys hired for this case have argued that further changes in 2005 and 2007 definitively removed lawmakers from disclosure requirements.

On Jan. 19, a Thurston County Superior Court judge ruled emails, text messages and other information from lawmakers are subject to public disclosure. Attorneys for the Legislature are appealing the decision to the state Supreme Court.

Judge Chris Lanese pointed out in his ruling lawmakers can always amend the law, but unless they do, they are subject to it.

In recent days, The Herald asked 15 lawmakers representing Snohomish County if they believe it is time for lawmakers to be subject to the disclosure law.

Four said “‘yes” unconditionally while another seven said they’re OK with it as long as there are assurances specific types of emails and texts will still be exempt from release.

No one said outright that lawmakers should be exempt. Three members did oppose treating records of legislators in the same manner as their counterparts in city, county and statewide offices. Sen. Keith Wagoner, R-Sedro-Woolley, declined to comment for the story citing the ongoing lawsuit.

“I absolutely support the Public Records Act. I hope we will get a bill to deal with it this session,” said Sen. Guy Palumbo, D-Maltby, adding he’s been talking with leaders of his caucus about the constructs of a bill.

Republican Reps. Mark Harmsworth, of Mill Creek, and Carolyn Eslick, of Sultan, and Rep. Mike Sells, D-Everett, also are on board.

“I don’t have a problem with more transparency,” Sells said. “I think it’s helpful though it may not help the flow of information around here and may slow the process down.”

Kristiansen said he’s concerned with “taking it to the level the lawsuit is talking about.”

“I believe the Legislature is very different than most when it comes to the type of situations we are dealing with,” he said. Sometimes in order to solve problems, they must be able to provide anonymity for participants, which means not disclosing certain records and other information, he said.

Sen. Marko Liias, D-Lynnwood, said he’s prepared to expand access to his records.

“For my part, I would rather stop litigating and come up with a solution,” he said.

However, he and most of the other area lawmakers contacted said any eventual solution should not result in every document they generate or receive becoming a disclosable record.

Some communications between legislators, and between a lawmaker and a staff member — especially during the drafting of language for bills — should be off-limits, they said.

“The citizens of Washington need to know what’s going on,” said Sen. John McCoy, D-Tulalip. “But there’s a time when you should be allowed to work and exchange messages. Trying to negotiate something in full broad daylight doesn’t work. You’ve got to get focused.”

Rep. Ruth Kagi, D-Seattle, is chair of the House Early Learning and Human Services Committee where she routinely handles legislation dealing with sensitive issues surrounding the care and treatment of children.

“I’m concerned with how we have honest conversations on an issue with a bill if you know it’s going to be public,” she said. “I am concerned we are not going to be able to address concerns that are politically challenging.”

Nearly every lawmaker insisted that any bill carve out protections against release of emails from constituents containing details of personal and private matters.

“I’m happy to have my schedule and communications related to bills available to the public,” said Rep. June Robinson, D-Everett. “I would not want to have to release information about peoples’ personal lives.”

Not every communication from a constituent is related to pending or proposed legislation, several lawmakers said.

Sometimes a person is reaching out for support and assistance, and in so doing reveals information about themselves they would never intend for public consumption, they said.

“I got my training assuming that everything would be available to the public,” said Rep. Shelley Kloba, who served on the Kirkland City Council before winning a House seat.

But since becoming a state legislator, she’s found constituents’ best chance of interacting with her can be an email. If its content is personal and there’s a likelihood of its release, those emails will stop and her relationship with those she serves affected, she said.

“I feel like that would silence their voices,” she said.

Rep. Cindy Ryu, D-Shoreline, also served in local government before coming to Olympia. She’s fine with lawmakers being subject to the law but worries the bond between lawmakers and those they serve will be weakened if there’s no ability to keep private matters private.

“I have nothing to hide,” she said. But for years lawmakers have been reassuring constituents that their confidences will be kept. “If we do completely open it up, I am concerned it will squelch contact from the public.”

Jerry Cornfield: 360-352-8623; jcornfield@herald net.com. Twitter: @dospueblos.