Editorial: Lawmakers should end their public record exemption

By court decision or legislation, state lawmakers should be subject to the state’s transparency act.

By The Herald Editorial Board

Earlier this month, lawyers for Washington state’s legislators argued that state law specifically exempts lawmakers from the provisions of the state’s Public Records Act.

And lawmakers are certain about this because they are the ones who more than 20 years ago added language to the act that exempts them from turning over emails, text messages, calendars and other documents — just for example, sexual harassment complaints — when a member of the public or news media makes a formal request under the act.

In September, several state news organizations, including The Herald’s Sound Publishing, sued the Legislature over its refusal to comply with records requests. The lawsuit, filed in Thurston County Superior Court, challenges the exemption that lawmakers are using to keep secret the records they generate related to their work.

In a filing made earlier this month to the court, attorneys for the Legislature argued that amendments made to the Public Records Act, particularly one passed in 1995, lawmakers now “are treated uniquely” as compared to other public officials and agencies that must comply with the law, reported the Associated Press’ Rachel la Corte.

Court arguments may turn on that 1995 amendment to the Public Records Act, which was made law in 1972 following a successful initiative that passed with 72 percent approval.

An attorney for the media coalition responded that the 1995 amendment was made with little debate nor opportunity for public records advocates to object. “People would have appeared and objected to that,” attorney Michele-Earl Hubbard, told the Associated Press. “They never made clear that’s what they were doing.”

We can make the case no more clearly than the Public Records Act, itself:

“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. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

Lawmakers have made the argument that subjecting themselves to the act’s provisions would complicate the process of drafting bills and reaching consensus on legislation. Even if that is the case, state lawmakers haven’t used that justification to exempt local city councils, school boards and other local governments from complying with the law. And while local governments have asked for some relief from instances where the Public Records Act is abused or compliance has created a financial burden for cash-strapped municipalities, those officials have almost always agreed with the necessity of the law itself.

No immediate ruling is expected in the case before the Thurston County court; it’s next hearing in the matter is in late December. Ultimately, the issue is likely to go before the state Supreme Court.

In the meantime, at least two state lawmakers say they will propose legislation that would remove the exemption.

Rep. Paul Graves, R-Fall City, in announcing his legislation, said he believes the Legislature is correctly interpreting the 1995 amendment, but believes the law should apply to himself and other lawmakers as it does to all state public officials and agencies.

“Transparency and accountability are critical to our system of representative democracy,” Graves said in a release last week. “From the governor to city council members, no elected official should be exempt from answering to the people they represent.”

Graves’ Legislative Transparency Act would essential remove the 1995 language from the Public Records Act and subject lawmakers to the same compliance requirements expected of other public officials.

Rep. Gerry Pollet, D-Seattle, also plans to file legislation to remove the exemption during the coming session, which begins Jan. 8.

Neither bill is likely to get far, especially during a short 60-day session that will be dominated by a to-do list that includes passage of a capital budget, resolution to a water rights case and necessary fixes to the K-12 funding solution lawmakers passed this year.

That’s all the more reason for the media coalition to pursue the lawsuit and obtain some direction from the courts. Because, wouldn’t it have been helpful for citizens to have some better insight in to how those decisions were made?

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