Politics & Government

Washington lawmakers press case that public records law doesn’t apply to them

Attorneys representing the Washington state Legislature on Tuesday urged the state Supreme Court to overturn part of a trial court decision that said legislators must release records to the public under a broad definition that covers state departments and other elected officials.

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 records to the public such as emails, work calendars and sexual harassment complaints.

Last year, Thurston County Superior Court Judge Chris Lanese ruled that the open records law applies to individual lawmakers and their offices. The Legislature appealed that decision. The media coalition filed a cross-appeal, arguing that Lanese also should have ruled that the administrative offices of the House and the Senate are subject to the broad disclosure requirements in the state’s public records law.

For 40 minutes, attorneys for both sides made their arguments and faced a volley of questions from five of the nine justices.

Attorneys representing the Legislature argued that under the state Public Records Act, the Legislature, its 147 members and their offices are not “state agencies” as defined in that law and thus are not subject to the expansive disclosure requirements that, for example, cover the state Department of Transportation or a city council member.

The Legislature’s position is it’s required to release only documents such as “budget and financial records, personnel leave, travel and payroll records; records of legislative sessions; reports submitted to the Legislature ...” The public records law does not require the release of legislators’ schedules and calendars, emails, text messages, videos or complaints related to personnel investigations, attorneys for the Legislature said in court briefs.

Paul Lawrence, an attorney with Seattle-based Pacifica Law Group, which is representing the Legislature, told the justices that Lanese incorrectly applied a 1995 state law amendment that defined “state office” to include “legislative offices.” That definition spoke solely to campaign finance and ethics laws and should not be used to determine disclosure requirements under the records law, Lawrence said.

Since 2007, the definition of “agency” and “state agency” in the public records law has not included legislative offices or the Legislature as a whole, Lawrence said.

“If it was so plain, why didn’t the Legislature just say, `This does not apply to us?’” asked Justice Steven Gonzalez.

“To me, it was plain that they were saying that ...,” Lawrence replied. “I don’t think there has been any confusion on this.”

Michele Earl-Hubbard, an attorney with Seattle-based Allied Law Group, which is representing the media coalition, told the justices that legislators have failed to cite any records showing they intended to exempt themselves or their offices from the definition of “agency.” As a result, they are subject to the disclosure requirements of the public records law, not the narrow one they are claiming, she said.

In fact, Earl-Hubbard said, the 1995 amendment to state law actually made it clear that the “office of a legislator” is a “state agency” required to comply with the broad requirements of the public records law. The more narrow categories of records that must be released, such as budget documents, applies to the Clerk of the House and the Secretary of the Senate, she said.

Earl-Hubbard said senators in 2003 and 2005 tried to amend the public records law so they didn’t have to release as much information as state agencies, but they couldn’t get the House to pass the measure.

The media’s lawsuit, filed in 2017, stemmed from legislators’ refusal to fulfill requests seeking records about sexual harassment complaints and their response to the Supreme Court’s 2012 decision in the McCleary lawsuit that said the state had underfunded K-12 schools, Earl-Hubbard said.

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.

Earl-Hubbard said the Legislature and individual legislators continue to refuse to produce records sought by news outlets.

“I’m talking about the workplace harassment complaints and whatever the Legislature did in response; the emails, the text messages, the calendars. There is no way to get those if you find the (Public Records Act) doesn’t apply,” she told the high court.

In court briefs, Earl-Hubbard said Lanese, the Thurston County Superior Court judge, erred in ruling that the administrative offices of the House and Senate are not “agencies” as defined by state law and can release public records only in a “limited capacity.”

At Tuesday’s oral arguments, Earl-Hubbard referred to the 1972 vote of the public that created the state’s public records law.

“The people were the first legislators. It is their will and their intent that should be honored,” she said.

Gonzalez asked Lawrence whether legislators made a policy choice to require local governments such as cities and counties to comply with the broad requirements of the public records law, but not themselves.

“That is correct,” Lawrence replied. “The state Legislature is particularly challenged being a part-time legislature and the intensity that goes on during the legislative session. So it was a legitimate policy choice to say the Public Records Act applies only in a more limited way to the state Legislature.”

Earlier this year, Sen. Jamie Pedersen, D-Seattle, sponsored a bill to overhaul the public records law instead of waiting for the Supreme Court to rule, but the bill died in committee after opposition from news outlets.

The high court is expected to release a decision within the next several months.

James Drew covers the state Legislature and state government for McClatchy’s Washington papers: The News Tribune, The Olympian, The Bellingham Herald and The Tri-City Herald.