Are legislators telling the truth about the controversial public records bill they just passed? Not so much

Washington state lawmakers passed a sweeping public-records bill Friday, exempting the state Legislature from the state’s Public Records Act and embroiling themselves in a controversy that continues to churn throughout the state.

The bill, SB 6617, was introduced on Feb. 22 with minimal notice, rushed through the Senate and House without public hearings or testimony and passed Feb. 23 on swift voice votes with minimal debate.

Legislators say the bill is a step toward more transparency. Critics say it’s a big step backward and an assault on open government.

Public outcry was swift and fierce. News organizations throughout the state have condemned the bill. The News Tribune’s editorial board called it a “snow job.” The Seattle Times called it “a slap in the face” to the public. The Spokane Spokesman-Review described the bill as “an appalling display of legislative hubris.”

How Governor Jay Inslee will respond to the bill remains to be seen. Last week, prior to the bill’s passage, he voiced general criticism in a statement to the Seattle Times:

“As I have said repeatedly, my office has found a way to be effective in representing 7 million people while still being subject to public-disclosure laws.”

Inslee said he didn’t know whether he would sign the bill if it passed.

He has five days from the bill’s passage to decide, excluding Sunday. The decision window closes on Thursday, March 1.

Inslee has several options:

▪ Sign the bill into law.

▪ Take no action, which would allow the bill to take effect without his signature.

▪ Veto the bill, forcing legislators to take up the issue again.

The last option is thorny. The Senate passed the bill on a 41-7 vote. The House passed it moments later by an 83-14 vote.

Those numbers represent veto-proof majorities, exceeding the theoretical two-thirds threshold required to override a veto. If Inslee chooses to veto anyway, he would be inviting legislators to a game of political chicken, forcing them to take the same vote again in an atmosphere of public criticism.

Before the bill passed, legislators offered little or no comment about it. Legislative leaders refused to say who drafted it and why the process was being rushed in apparent defiance of traditional lawmaking.

After the votes in the House and Senate, a handful of legislators stung by public criticism, including Reps. Laurie Jinkins (D-Tacoma), Sharon Wylie (D-Vancouver), Beth Doglio (D-Olympia) and Sen. Jamie Pedersen (D-Seattle) offered statements on their individual web pages, on Facebook and in letters to constituents explaining their views of the bill.

The letters typically recited the same talking points word for word, including this preamble:

“I apologize in advance for a long response but wanted you to understand my position, since I think that the bill has been widely misunderstood.”

Here’s a point-by-point examination of the rhetoric offered by legislators.

The courts do it, so why can’t we?

The statements from lawmakers refer to the state court system, noting that, “The judicial branch also takes the position that it is not subject to the Public Records Act and has adopted its own rules.”

It’s true that state courts have decided over the years that they are not subject to the state public records law. The decision reflects case law and rules adopted by the courts after lengthy public comment.

There are two types of court records: case files and administrative records. Case files involve criminal charges and civil cases such as lawsuits. Broadly speaking, case records are open to the public, except in certain matters, such as adoptions, dependency, and civil commitment in the state’s mental hospitals.

Administrative records involve the management of courts. They include personnel records and records involving day-to-day office management. Such records are subject to disclosure under general rules adopted by court officials. The key rule, known as GR 31.1, was adopted in 2016, following several years of public comment and meetings attended by stakeholders, including media entities.

In contrast, the Legislature filed and adopted SB 6617 within two days.

Toby Nixon, president of the Washington Coalition for Open Government and a former state legislator, said lawmakers offer a false premise.

“If they (legislators) are trying to claim they just did what the courts did, then they certainly messed up the process,” Nixon said.

The media made us do it

The statements from legislators refer to a lawsuit filed last year by media organizations (including The News Tribune) and a subsequent ruling by Thurston County Judge Chris Lanese that concluded lawmakers were subject to public disclosure laws.

“This ruling overturns settled law from the last 45 years in this area and produces absurd and unworkable results,” the lawmakers wrote.

The statement mischaracterizes the nature of the legal dispute, according to Nixon and Michele Earl-Hubbard, the attorney who is representing media organizations in the case.

“There has been no settled law, or any law,” Earl- Hubbard said. “The legislators tried in 2003 and 2005 to amend the Public Records Act to remove themselves, showing they knew the law at the time had not removed them.”

The media lawsuit includes a declaration from Rowland Thompson, the longtime executive director of Allied Daily Newspapers, an association representing 23 news outlets around the state, as well as the state bureau of the Associated Press, also a plaintiff in the lawsuit.

Thompson’s declaration refers to multiple instances of the Legislature’s attempts to amend the Public Records Act over the years, starting in 1995 after a scandal uncovered numerous instances of legislative staffers working on political campaigns during working hours.

At that time, legislators amended the Public Records Act by unanimous votes in the House and Senate. Thompson’s declaration notes that the 1995 bill defined state legislative offices as “agencies” under the Public Records Act.

A friend-of-the-court brief filed in January by Attorney General Bob Ferguson’s office makes the same point regarding the 1995 law:

“The Final Bill Report of the enacted law describes these revisions as follows: ‘Public disclosure statutes are amended to specifically address access to and production of public records in the possession of the Senate and the House of Representatives.”

Behind all the legal jargon is a simple point: The recent ruling in the public records lawsuit did not overturn settled law over the past 45 years. It reinforced the point that legislators voted years ago to subject themselves to public disclosure.

Claim: public disclosure would take too much work

Lawmakers contend that they would face new and onerous requirements if they subject themselves to public disclosure.

“I have one full-time staff person. If Judge Lanese’s opinion stood, I would have to appoint my own public records officer; adopt rules for public disclosure in my office through the Washington Administrative Code; and be available at least 30 hours a week year-round for public inspection of records.”

Open-records experts say the lawmakers are exaggerating when they suggest that each legislator would have to set up their own rules.

“The canned legislative statement is just plain wrong,” Nixon said.

The lawmakers are referring to RCW 42.56.580, a section of the Public Records Act. It’s true that the law requires agencies to appoint public records officers, but it’s also true that agencies can pick that officer.

Traditionally, legislators have deferred to the chief clerk of the House and the secretary of the Senate to handle legislative records. Nixon notes that legislators took that precise step in the bill passed last week.

“The Public Records Act would allow them to do the same thing,” Nixon said.

A step toward transparency or a step back?

The lawmaker letters contend that SB 6617 makes new records public.

“It also adds substantial new categories of records (including legislators’ calendars and letters and e-mails from lobbyists) that will be subject to public disclosure. These documents have never been public before.”

Technically, the bill doesn’t make any records public until after July 1, 2018. Also, the calendars, letters and emails were already ruled public by Judge Lanese’s court order.

SB 6617 turns the court order on its ear by declaring that the Legislature is not subject to the state public-records law and creating a new set of rules for lawmakers. While the new law would open some of the records in question to disclosure, it would not open them all, and it specifically excludes certain records from disclosure, such as emails from constituents.

“The new law is a restriction on what Judge Lanese said they should have been releasing,” Nixon said. “They should have been releasing those records all along.”

Our emails contain too much private information to disclose

The lawmaker letters refer to the emails, again using the same statements word for word, while contending that the material they receive is sensitive and private. Here’s an excerpt:

“I receive 10,000-12,000 e-mails each session from constituents. Many are form e-mails from advocacy groups. Should a marketing firm be allowed to do a records request to my office for everyone who has e-mailed me about gun safety? Others share very personal information and seek my help in resolving their problems. These range from government benefit issues to sensitive health information to challenging family situations.”

The public records law explicitly prohibits agencies from disclosing “lists of individuals requested for commercial purposes,” which theoretically would include marketing firms. SB 6617 copies the language of current law and sets the same prohibition.

While legislators voice fears that they would have to disclose personal and private information from constituents, many categories of such information are already exempt from disclosure. That includes credit card information, Social Security numbers, home addresses, driver licenses and crime victim status. Medical information is also exempt under most circumstances. SB 6617 protects such information from disclosure, but it borrows much of its language from existing law that already protects the information.

Apart from that, the bulk of the correspondence legislators receive is likely to be generic, marked by invitations to local events or, as they say, from advocacy groups urging support or opposition to legislation.

Nixon noted that legislators could have written or amended SB 6617 to address such sensitive information if they wished. Instead, they wrote themselves out of the public disclosure law entirely, creating a new category for themselves. Looking back on his legislative tenure (2002-06), he said that correspondence containing private information was rare.

“I can count on one hand the number of emails I received during my five years in the Legislature that disclosed actual sensitive personal information,” he said.

We can police ourselves just fine

Lawmakers argue that SB 6617 would open up new records to disclosure, but they say little about what would happen if individuals seeking records are denied. The bill would prohibit judicial review, a key remedy in the Public Disclosure Act that allows citizens to petition the courts for wrongful denial of records. Those provisions of the law also include penalties for illegal withholding. For example, the Port of Tacoma was recently fined $159,000 for wrongful withholding of records.

SB 6617 includes no such penalty provisions. It hands the appeal process to two committees in the House and Senate. Their reviews of appeals regarding nondisclosure are final. Citizens who don’t like the answer have no further recourse and no opportunity to recover expenses for time and legal advice.

“That’s really scary,” said Gordon Padget, a Clark County resident who spoke at a Feb. 22 work session on SB 6617 — the only chance citizens had to say anything about the bill before it passed.

Lawmaker letters said the two committees would provide an ideal venue to handle disputes over records.

“The House Executive Rules Committee and the Senate Facilities & Operations Committee are well-positioned to administer this process and handle appeals quickly and efficiently,” the lawmaker letters state.

The two committees meet on a quarterly basis. Nixon said that schedule would preclude timeliness for individuals seeking redress for nondisclosure, especially in matters involving active legislation.

Asked whether the Legislature could be trusted to police itself in disputes over disclosure, Earl-Hubbard offered a short answer.

“No way.”

The court made us do it — or did it?

The process that led to passage of SB 6617 led to some of the strongest criticism of the bill. Rep. Melanie Stambaugh (R-Puyallup), who voted against the bill, said dissenting House members were denied the opportunity to speak in floor debate.

Lawmakers responding to concerns about the process again relied on boilerplate, much of it word for word. The comments below appear in letters from Jinkins and Pedersen.

“Finally, I must say that I regret that the bill did not have time to go through the regular committee process. That is driven mostly by the fact that Judge Lanese ruled in the middle of the legislative session and refused to stay his decision. By the time our counsel had drafted the bill and had it ready to introduce, we were already past the time when the bill could have been heard in the regular process. If the ruling had come in October, we could have done this differently.”

According to records of the media lawsuit, attorneys for the Legislature did not seek a stay of Lanese’s ruling, making it impossible for him to refuse such a request.

“The Defendants have never sought a stay of proceedings in the trial court,” said Earl-Hubbard.

Since Lanese’s Jan. 19 ruling, attorneys for the Legislature have asked the Washington state Supreme Court to issue a stay preventing disclosure of the records in the lawsuit. That request is pending.

This story was originally published February 26, 2018 at 5:40 PM with the headline "Are legislators telling the truth about the controversial public records bill they just passed? Not so much."