OLYMPIA — An alliance of news organizations, including The Daily Herald, launched a legal fight Tuesday to require state lawmakers follow Washington’s public records law and release records generated through their work as elected officials.
The lawsuit, filed in Thurston County Superior Court, takes aim at language lawmakers added to the public records statute more than two decades ago that they contend exempts them from stricter disclosure rules imposed on elected officials and government employees throughout Washington.
They’ve used this exclusion to avoid releasing items such as calendars, emails, phone logs and text messages — all of which elected officials from city councils and school boards to leaders of state agencies and Gov. Jay Inslee must make public, and do on a daily basis.
By withholding hundreds of highly important records, members of the state House and Senate are depriving the public of information essential to knowing what is going on in state government, the lawsuit says.
“We believe in the public’s right to know, and that includes what is happening with and around our elected officials,” said Gloria Fletcher, president of Sound Publishing Inc., owner of The Herald and Heraldnet. “It is as simple as that.”
Toby Nixon, a Kirkland City Council member and president of the Washington Coalition of Open Government, said lawmakers should be held to the same standard on public records as city and county leaders.
“How can we as citizens know that our elected officials are making good decisions if we don’t have access to the same information they are using to make those decisions?” Nixon asked.
Public records are a sore subject for some local officials.
Demands for records are on the rise and the cost of supplying them is climbing. Modern technology makes it possible for individuals and corporations to submit hordes of requests automatically through a mode known as a bot request.
While Nancy Truitt Pierce, a Monroe School Board member and legislative representative for the Washington State School Directors Association, was not aware of the lawsuit, she said it might spur improvements.
“Providing public records is vitally important. I still think there is a need for more reform,” she said. “I think lawmakers would have more appreciation for the need if they had to deal with the records requests in the same manner that we do.”
The suit names the state Legislature, the Senate and House separately, and the leaders of the four political caucuses individually.
Secretary of the Senate Hunter Goodman and Chief Clerk of the House Bernard Dean issued a brief statement in response to emailed requests the AP sent to the leaders of the House and State and the attorneys for each caucus seeking comment.
“We are aware of the lawsuit, but we have consistently advised members and staff not to comment on pending litigation,” Goodman and Dean wrote in a joint email.
Besides The Herald, other organizations involved in the lawsuit are AP, Northwest News Network, Spokesman-Review, Tacoma News-Tribune, Olympian, Seattle Times, KING-TV and KIRO-TV. Allied Daily Newspapers of Washington and the Washington Newspaper Publishers Association also are parties.
Voters created the state’s public records law with Initiative 276 in 1972. It set the bar for requiring elected and appointed government officials to make certain records available.
At the time of the initiative’s passage, the Legislature already had a definition of a legislative record. Lawmakers revised the definition in 1995. Lawyers for the House and Senate cite the change as a reason lawmakers don’t have to turn over their records.
Media organizations argue the lawyers’ interpretation is wrong. The action in 1995 did not “reverse the will of the people” expressed in the initiative and “remove or narrow its reach to the very elected individuals with which that initiative was so deeply concerned.”
In June, reporters sent requests to all 147 Washington lawmakers for copies of their calendars for the regular and special sessions, and text messages sent or received for their legislative duties.
Most let their chamber’s attorneys respond.
Rep. Mike Sells, D-Everett, did reply. He didn’t provide any records but did criticize the request as a “sad comment on the state of our press.”
“(Five) months down the road and you are asking for this stuff for 5 months back when you (the press overall) should have been on top of it in the first place,” Sells wrote in an email.
Rep. Gerry Pollet, D-Seattle, released his calendar, noting in an email that “openness and disclosure regarding my public duties are vital for media and public accountability.”
Rep. Mike Pellicciotti, D-Federal Way, a King County prosecutor, provided his calendar and texts exchanged with his legislative assistant.
“These legislative records are in the public interest, and so I am voluntarily providing them as requested,” Pellicciotti wrote, adding he hoped his colleagues would do the same.
Jerry Cornfield, who contributed to this report, is the Olympia-based reporter for The Herald. His requests for public records from several Snohomish County lawmakers were denied. Those denials are an element of the lawsuit.
Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com. Twitter: @dospueblos.
Timeline of events
A coalition of news organizations led is suing the Washington Legislature over its assertion that state lawmakers aren’t required to turn over daily schedules, text messages, emails and other materials related to their work. Here’s a look at a timeline of the public records law in the 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 to 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 and the language was not adopted.
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. When he took office that same year, Gov. Jay Inslee said he did not intend to exercise the executive privilege exemption unless it was explicitly provided by the Legislature or a vote of the people. To date, he has not.
2016: The 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.
2017: A coalition of news organizations, led , sues the Legislature to challenge its assertion that most lawmakers’ records are not subject to public disclosure.
Associated Press
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