Editorial: Lawmakers again exempt themselves from records act

Lawmakers are trying to avoid a court ruling on state law that applies to all others in government.

By The Herald Editorial Board

Well, it certainly is bipartisan.

But there’s little honor in that accomplishment when that intraparty accord is reached in the service — once again — of largely exempting the state’s legislators from the public records disclosure law that applies to nearly every other public official, government body and agency in the state.

For decades, state legislators have attempted to excuse themselves from provisions of the state’s Public Records Act, created by voters in 1972, which requires elected officials, state agencies and all forms of local government to comply with specific requests for public records and documents. A Superior Court judge in mid-January sided with a media coalition — which includes The Herald’s Sound Publishing — that sought to clearly apply the provisions of the state’s public records law to state lawmakers.

Early on it looked as if at least some lawmakers were taking the court seriously and were proposing and considering legislation that would have brought state lawmakers into compliance with the Public Records Act. Instead, the leaders of the four legislative caucuses and their lawyers worked secretly to craft new legislation — released Wednesday with about two weeks remaining in the regular session — that, rather than requiring lawmakers to comply with the records act, creates a new act that gives ground on limited release of a few types of records but otherwise exempts them for responding to legitimate requests.

Under Senate Bill 6617, lawmakers would be required to release calendars and email conversations with lobbyists, which, while significant, only begin to represent the breadth and depth of public records that legislators still would be allowed to conceal, including emails and texts among lawmakers, emails with constituents and background records related to legislation and reports.

Even with short notice, media watchdogs such as Rowland Thompson of Allied Daily Newspapers of Washington, quickly pointed to areas of grave concern with the legislation. Among them:

The legislation gives a broad definition to “constituents,” meaning more than ordinary citizens, but also possibly a gray area of those representing special interests that haven’t registered as lobbyists.

If protecting the privacy of “constituents” is the concern, we’ve pointed out previously that the Public Records Act does provide for withholding or redacting information that presents a safety risk or would be considered highly offensive to a reasonable person. But it still allows for release of the document itself.

Among the most critical records that would likely be protected from disclosure under the Senate bill are those related to complaints and investigation of sexual harassment involving lawmakers, staff, lobbyists and others. Only a final report of a disciplinary outcome would be released, meaning that any complaint that doesn’t end in a report — as would happen with the resignation of any of those involved that closes the matter without discipline — would likely never see the light of day.

This stand-alone records act for lawmakers also provides no due process, no legitimate avenue for appeal if a records request is denied. Committees in either the House or Senate would review the denial, and their rulings would be final. No court challenge would be allowed.

The bill would become effective upon passage and is retroactive, an attempt to nullify the January decision of the Thurston County Superior Court judge, a move which itself is a constitutional breach of the separation of powers.

And while lawmakers have been patting themselves on the back for their bipartisanship in protecting their own backsides, the way the legislation has been handled is nothing less than crass and undemocratic.

It was drafted in secret, and because it was introduced late in the session, it will not be heard in committee and will receive no public hearing. Amendments will not be allowed in either the Senate nor the House. The Senate was expected to vote on the measure this evening, with the House following so after with its vote.

Barring a demonstration of courage by a majority in either Senate or House, the bill is likely to move on to Gov. Jay Inslee’s desk. Inslee, understandably, has been reluctant to kill legislation that passes the Legislature with a veto-proof majority, but we urge the governor to veto the bill regardless.

Inslee enjoys the rare exemption of executive privilege from the state Supreme Court regarding the Public Records Act, yet he has made it policy to comply with such requests.

Even facing an overturn of his veto, we ask the governor — out of respect for a law that pours sunlight on the inner workings of government — to veto Senate Bill 6617 and let lawmakers live with the consequences.

And voters and those in the media, who are the beneficiaries of laws such as the Public Records Act and the Open Public Meetings Act, should deliver those consequences by vowing not to vote for nor endorse any senator or representative who approves the passage of a law that is plainly a raised middle finger to both.

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