Attorney General’s Office won’t defend Legislature in public records lawsuit
The Washington state Attorney General’s Office is withdrawing from representing the state Legislature in a lawsuit over the withholding of public records, and a private law firm has been appointed to tackle the case, court filings show.
Jeffrey T. Even, Deputy Solicitor General, filed the notice of withdrawal April 27 in Thurston County Superior Court.
Pacifica Law Group, the firm appointed to represent the Legislature, recently intervened in the Quinn vs. state of Washington case, where the state Supreme Court ruled that the state’s newly enacted capital gains tax is constitutional.
The lawsuit against the Legislature was filed in early January by open government activist Arthur West, after McClatchy first reported that state lawmakers were quietly using “legislative privilege” — a legally untested exemption — to withhold their public records.
Two attorneys from the firm will represent the state Legislature and lawmakers in West’s case.
West previously faced Pacifica in a case where they represented the 2021 Washington State Redistricting Commission. That case was settled for $40,000, after West sued the commission for withholding and destroying public records. Pacifica has intervened too on other cases filed by West.
The state AG’s office contended that state lawmakers can refuse to provide certain records to the public under a legislative privilege exemption, according to court filings from February.
Court filings show that West is asking for declaratory and injunctive relief regarding whether or not lawmakers can claim legislative privilege to withhold records and shield them from the state’s Public Records Act.
Additionally, the lawsuit aims to find out whether the constitution itself gives lawmakers the authority to exempt themselves from releasing certain records, with West asserting that legislative privilege is “an issue of major public importance, and an actual dispute between parties having genuinely opposing and substantial interests.”
Lawmakers have argued that a provision in the state constitution’s speech and debate clause grants them the privilege to withhold certain documents.
Second lawsuit filed
West is not the only one suing lawmakers for withholding public records under the claim of legislative privilege.
Another lawsuit was filed last week by the Washington Coalition for Open Government and plaintiff Jamie Nixon, who is familiar with work of the Redistricting Commission.
That lawsuit is also seeking declaratory relief for lawmakers’ claims of withholding records under legislative privilege. Court documents show that Nixon and WashCOG requested specific records from the Legislature but were denied under the claim.
The filing asserts that the state failed to adequately respond to requests for certain records because they claimed “erroneously” that their records were privileged and not subject to release under the request.
Under the Public Records Act, lawmakers are identified as individual agencies, and as such, the suit also specifically names lawmakers whose records were withheld in public records requests.
“(The) Washington Public Records Act does not contain any legislative privilege exemption,” the suit stated. “Washington Courts have not held legislative privilege was an exemption from Washington’s Public Records Act.
A review of thousands of public records obtained in a joint effort by McClatchy and Crosscut in February found that not only was the exemption first quietly rolled out in 2021, but that the legally untested idea of “legislative privilege” for state lawmakers already had been introduced to, and largely ignored by, the Washington State Supreme Court more than a decade before.
It is unclear if Pacifica Law Group will also represent the state in the WashCOG case. McClatchy’s attempts to reach the law firm for comment were unsuccessful. McClatchy contacted the AG’s office to ask if Pacifica will also be representing the state in that case, but the AG’s office referred McClatchy to the Legislature. Legislative leaders have previously declined any questions regarding the lawsuits.
This story was originally published April 30, 2023 at 5:00 AM with the headline "Attorney General’s Office won’t defend Legislature in public records lawsuit."
