What is the FOIA?
The Legislature should approve a bill to overhaul the public records law instead of waiting for the state Supreme Court to rule on a heated dispute between journalists and lawmakers over government transparency, the bill’s chief sponsor said Wednesday.
Sen. Jamie Pedersen, D-Seattle, acknowledged that might not happen after a Senate committee heard opposition to his bill from news outlets.
“If the bill just dies in committee, which is very possible, then I guess we’ll just be waiting to see what the court does, and we’ll go through a period of more years,” Pedersen said in an interview.
In 2017, a coalition of media organizations led by the Associated Press and including The News Tribune filed a lawsuit alleging lawmakers were violating state law by not disclosing government records such as emails, work calendars and sexual harassment complaints to the public.
The Legislature responded last year by passing a bill to retroactively say the Public Records Act does not cover the legislative branch. As newspapers published front-page editorials against the bill and a public outcry ensued, Gov. Jay Inslee vetoed the legislation.
A Thurston County Superior Court judge ruled last year that the open records law applies to individual lawmakers. The Legislature appealed that decision. The Supreme Court is expected to hold oral arguments later this year.
Pedersen told the Senate State Government, Tribal Relations and Elections Committee on Wednesday that his bill, SB 5784, is in response to the public’s desire for a “higher level of transparency in our operations and in the work that we do here in the Legislature.”
The bill would make legislators subject to the voter-approved Public Records Act with some exceptions. It would apply retroactively, not just to public records requests filed after the effective date, he said.
The head of a trade group for Washington state newspapers expressed opposition to Pedersen’s bill, as did the former publisher of The News Tribune, The Olympian and The Bellingham Herald; the publisher of The Seattle Times, and the executive editor of The Tri-City Herald.
“We would rather lose the case than have this bill,” said Rowland Thompson, executive director of The Allied Daily Newspapers of Washington. “If we accept this bill, it’s an acquiescence on our part that your positions in the lawsuit are correct, because most of them are carried forward in this bill.”
Pedersen said under existing law, the results of investigations into lawmakers for sexual harassment and other misconduct are not public records. He said his bill would make them so, although investigative materials and witness statements leading up to the report would not be released to the public.
“The power dynamic within the Legislature makes it very, very challenging for witnesses or people who have been harassed to come forward and make their claims. And if their identities became public, the fear is they will never work again in this arena,” he said.
Pedersen acknowledged that most of the controversy over his bill likely would focus on what records would be exempt from disclosure. Those provisions include removing information that could identify a person writing to a legislator unless they are lobbyists and barring the release of records about how legislators make decisions, referred to as “deliberative process.”
“When our constituents come to us with problems, we want them to be able do that without fear that the personal details of their lives are going to spill over into the press,” he said, citing examples such as a parent whose child is addicted to opioids or the victim of a sexual assault.
Information blacked out on a public record, referred to redaction, could be restricted to the name, address and phone number of the constituent, but it also could involve the story the person tells if the narrative leads to them being identified, Pedersen said.
Pedersen said exempting records from public release under “deliberative process” grounds is needed to preserve the ability of lawmakers to “brainstorm and spitball” with staff members as they craft proposals that might or might not be filed as bills.
David Zeeck, former publisher of The News Tribune, The Olympian and The Bellingham Herald and president of The Allied Daily Newspapers of Washington, said exempting those documents, along with investigative records used in producing a report on possible legislator wrongdoing, is “phenomenal overreach.”
“When a bill is passed, I think people need to see how that is done. It seems more like the Soviet Duma, where you see the legislature get together and we all raise our hands and vote. You have no idea what went on behind that, that got us to that place,” Zeeck said. He referred to the legislative body in the ruling assembly of Russia and some other republics of the former Soviet Union.
Regarding records created during investigations into possible wrongdoing by legislators, Zeeck said those documents should be released to the public, in addition to the final reports, once the matters are adjudicated.
“That ensures public confidence in the process. They can determine then, `OK, I see how they got there.’ If you don’t know anything but the decision, you can’t as a citizen properly judge what is going on,” he said.
Thompson, the executive director of The Allied Daily Newspapers of Washington, said local government officials are required to release records in deliberations, such as preliminary drafts of laws, after their governing body takes action.
“Those poor county commissioners and those poor city councilmen and those poor local government officials bear the brunt of the public actually knowing what they do and seeing into the deliberative process. You are asking for a legislative privilege to be applied to 147 people,” he said, referring to the number of Senators and House members.
Frank Blethen, publisher of The Seattle Times, referred to the 2018 public records bill that Inslee vetoed and Pedersen’s SB 5784 as the “most misguided attempt I’ve yet seen to try to thwart” the Public Records Act.
“You have broken the law for years,” Blethen told committee members. “Now you are responding to accountability by creating an even more secretive chamber. What are you hiding? What are you afraid of?”
Laurie Williams, executive editor of the Tri-City Herald, said, “Sometimes the people need to see the sausage-making no matter how nasty” to understand how difficult the work of the Legislature is and how important it is to their lives.
“This change that you are proposing sends the wrong message in an era rife with conspiracy theories, paranoia, distrust and so-called fake news,” Williams said. “This is not the time to give the public the sense that you have something to hide. The public needs to know more, not less, about what is behind your decisions and your laws.”