Comment: No legal basis for legislators’ ploy to hide records

State lawmakers are using a nonexistent privilege to deny public records requests, defying state law.

By Mike Fancher / For The Herald

When Washington legislators tried to exempt themselves from the Public Records Act nearly five years ago, thousands of Washingtonians angrily emailed or phoned Gov. Jay Inslee’s office. Inslee vetoed the measure. We considered SB 6617 a dead letter. Forever.

But now the Washington Legislature is asserting that legislators have a previously unknown personal privilege to withhold from public disclosure the documents they use in their work for the people. No such “legislative privilege” applies to legislative records.

The Legislature’s emerging new take on its responsibilities under the Public Records Act came to light recently in response to records requests from the public and news media. The Legislature apparently is claiming that the legislators’ emails, texts, WhatsApp chats and other forms of intergovernmental and external communications fall not under the state’s Public Records Act, but instead under Article II Section 17 of the state Constitution.

That’s an astounding reach. That clause protects “freedom of debate.” Under the House’s new expansive interpretation, legislators could withhold records of internal legislative discussion of proposed policies, positions or legislation, including deliberations, recommendations, opinions and advice.

The Washington Coalition for Open Government believes this is wrong legally and politically.

It violates the spirit of Washington’s open government laws: The people have a right to know.

WashCOG knows so far of three instances where the Legislature asserted this nonexistent privilege:

• In response to a Public Records Act request filed last spring by reporter Austin Jenkins of Northwest News Network for House records related to a state representative’s correspondence regarding potentially impeaching Gov. Jay Inslee;

• In reply to a records request by Jamie Nixon, a former employee of the Washington Redistricting Commission, the Senate cited “legislative privilege” when it rejected his request for emails, texts and other communications among legislators and others regarding the Redistricting Commission on Sept. 26. After a McClatchy news story about legislative privilege ran recently, the Senate relented and released the documents in question, but maintained that Senate Majority Leader Andy Billig had the right to withhold them; and

• To address a request to the House by Linda Yang, executive director of Washington Asians For Equality, who was seeking records showing why the Legislature killed plans for Chinese American History Month.

The House apparently enshrined this supposedly longstanding exemption in the form of a note in its public records policy. We are uncertain of the basis of the Senate’s claim; its response to Nixon cited inapplicable case law that establishes a privilege for the executive branch.

Of the lack of information provided to her about Chinese American History Month, Yang said: “If the cited communication exemption can be applied so broadly and freely, PRA becomes meaningless.”

Yang never got an official response to her request.

WashCOG doesn’t know how often House leaders have used their creative new escape route from public accountability. But we intend to find out.

Here’s the actual wording of the section of the state Constitution that the House is citing:

“SECTION 17 FREEDOM OF DEBATE. No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

On a plain and simple reading, this is clearly not applicable to documents. It’s about “words spoken in debate.” It follows the “speech and debate” clause provision in the U.S. Constitution, which says members of Congress are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

So the speech and debate clause is about meetings. Not documents. (The clause traces to the English Bill of Rights of 1689, which was largely about protecting members of Parliament from libel charges for what they said in legislative argument.)

The Legislature needs to stop trying to hide legislators’ actions from the public. Knowing what our lawmakers are doing in our name is a cornerstone of our democracy, and lawmakers should stop trying to skirt the spirit and intent of the law.

A preamble to the Public Records Act is clear. “The people of this state do not yield their sovereignty to the agencies that serve them. 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.

It’s worth recalling that the Public Records Act was established after an overwhelming vote of Washington’s electorate.

We should be moving toward more transparency, not less. More accountability, not less. If we want to keep our democracy strong, then we demand accountability from our elected officials.

Mike Fancher is president of the Washington Coalition for Open Government. Since retiring as The Seattle Times’ executive editor in 2008, he has been involved in journalism as an university educator and administrator. This commentary was originally published in The Seattle Times.

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