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Monday, October 2, 2023
Oct. 2, 2023

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Public records exemption for lawmakers advances

Lawmakers urged to delay action on bill, now slated for Friday votes

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Gordon Padget of Vancouver speaks Thursday during the public testimony period of a joint work session of the Senate and House State Government committees at the Capitol in Olympia.
Gordon Padget of Vancouver speaks Thursday during the public testimony period of a joint work session of the Senate and House State Government committees at the Capitol in Olympia. Photo Gallery

OLYMPIA — Washington lawmakers are advancing quickly on a bill to exempt themselves from the state’s voter-approved Public Records Act, with the House and Senate expected to take final votes on the measure Friday, just two days after the bill was introduced.

Lawmakers held an informal work session Thursday but even lawmakers participating in the joint meeting of the House and Senate’s state government committees noted that many of them were still trying to sort through the bill , which has been put on a fast track as the Legislature is in the midst of appealing a Jan. 19 ruling of a Superior Court judge who sided with media groups, led by the Associated Press, who had argued lawmakers had illegally been withholding documents like daily calendars, emails and text messages.

“We are not the authors of this bill,” said Democratic Sen. Sam Hunt. “We’re learning about it as we go along too.”

Thurston County Superior Court Judge Chris Lanese ruled state representatives and senators and their offices are fully subject to public disclosure requirements that cover other local and state elected officials and employees at state agencies.

The bill, co-sponsored by Democratic Senate Majority Leader Sharon Nelson and Republican Senate Minority Leader Mark Schoesler, would officially remove the legislative branch from the state’s Public Records Act, but would allow release of some correspondence, “specified information” from lawmaker calendars, and final disciplinary reports beginning on July 1. However, because the law would be retroactive, it would prohibit the release of the records being sought by the coalition of news organizations.

“It’s breathtaking to have a bill show up this late in session on this most important issue and for the Legislature to step into an ongoing lawsuit at this moment, albeit not going well for you,” said Rowland Thompson, executive director of Allied Daily Newspapers of Washington.

Instead of an official public hearing, a more informal work session was hastily scheduled after the measure was introduced, though public testimony was allowed. With no committee vote, the bill has already been pulled directly to the Senate floor for an expected vote Friday. The House is expected to take it up and pass it the same day.

“Everything about the way this bill is being handled makes the average citizen leery of the legislation, leery of everyone in the Legislature,” said retiree Gordon Padget, who drove up from Vancouver to testify.

Under the measure, exemptions from disclosure would include records of policy development, as well as any records that would “violate an individual’s right to privacy.” While final disciplinary reports against lawmakers would be subject to disclosure, emails or other documentation of allegations of things like sexual harassment or misconduct that doesn’t result in an official report would not. Any person wanting to challenge a records denial would have to seek review by the Senate Facilities and Operations Committee or the House Executive Rules Committee, whose rulings would be final. No review by the courts would be allowed.

Nelson, the sponsor of the bill, said Wednesday that lawmakers decided to take action instead of letting the legal case play out in part because of the growing legal costs to taxpayers, but also because the ruling, if upheld, “puts us in a situation where we can’t function.”

“This is really a first step to try and strike a balance between concerns I hear from legislators and concerns I hear about open government,” she said.

The measure has an emergency clause attached, which means that instead of taking effect 90 days after the end of session, like most bills, it would take effect immediately, ensuring that there could be no referendum to challenge it.

David Zeeck, publisher and president of The News Tribune, The Olympian and The Bellingham Herald, told lawmakers the Legislature should hold off on moving the measure until the 2019 legislative session so that the public has the proper chance to weigh in.

“I think you’re running the risk of demonstrating to the people that you’re setting up an imperial Legislature that’s not subject to the people knowing what it’s doing, particularly when you have no judicial review,” he said.

At least two of the lawmakers who were part of the work session said afterward that they would be voting against the measure in their respective chambers: Republican Sen. Mark Miloscia and Democratic Rep. Mike Pellicciotti, who released his records to media last year.

“The public has a right to have access to our public records,” Pellicciotti said. “If the court has spoken, we should honor what the court has already said.”

Hunt said he still isn’t sure how he’ll ultimately vote, but expressed some concern about the rushed process.

“It’s certainly not perfect, let me put it that way,” he said. “I’m sort of at a loss for words of how we should be going about this, frankly.”

It’s unclear whether Gov. Jay Inslee — who has said he believes lawmakers should be subject to the same transparency laws other government officials are — would veto the bill if it passes both chambers. If two-thirds of lawmakers support the measure, they could override any veto.