Washington’s Supreme Court strengthened the state’s Public Records Act this month, affirming that a batch of state employee emails on state computers are public records.
But the decision might not all be good news for open government. Part of the decision raises concern about where justices are going in a high-profile pending suit, over whether the Legislature is subject to the same transparency rules as other state and local agencies. Remember the public outcry early last year that squashed lawmakers’ efforts to exempt itself from them.
The unanimous Sept. 5 ruling, penned by Justice Debra Stephens, affirmed that emails sent by University of Washington Professor Rob Wood and stored on UW computer systems were public records.
This was a welcome decision reflecting the will of Washingtonians. Voters created the act with a 1972 initiative, making the state a leader in transparency.
Had the ruling gone the other direction, in favor of a union trying to keep the records secret, it would have devastated the act, restricting future public access to records needed to hold government accountable.
The Wood emails related to workplace union organizing. Some were on private email accounts but accessed and retained on state-owned computer systems. The Freedom Foundation, a conservative organization, requested them. Service Employees International Union 925 sued to block their release and had prevailed in Superior Court and the Court of Appeals.
That these are public records seems obvious. The act defines public records to include “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” A series of rulings has affirmed this applies to records on computers and even personal phones when used for government-related activity.
That doesn’t mean everything is revealed. The act exempts sensitive and private information, but all messages may be retrieved when an agency is gathering information in response to a records request. The agency creates a log of what’s disclosed, what’s exempt and why. That creates a process where, if necessary, a judge can decide whether records were properly withheld.
The key principle is that the public needs broad access to know what its government is doing, gauge performance and decide whether employees are acting appropriately.
The public is the employer, paying for salaries, computers and services to store and transmit emails and other electronic information. Just like a private employer, it maintains access to stay informed about the conduct of employees and how its dollars are used.
That’s why, in the separate pending case, the Legislature’s refusal to abide by the act, and fully disclose public records documenting its activity, is so galling.
In a lawsuit brought by The Associated Press, this newspaper and other media organizations, a Superior Court judge last year said the Legislature is indeed subject to the records act, just like every other legislative body in the state, such as city councils and school boards.
Rather than comply, the Legislature rushed through a bill exempting itself from the records act. After a public outcry, the governor vetoed the bill, and lawmakers stood down.
That suit is now before the Supreme Court — oral arguments were held in June.
One issue driving the media case is legislators’ unwillingness to disclose records that might reveal misbehavior, including sexual misconduct. They work for the people, and the people are paying dearly for computer servers and email services, as well as their file cabinets.
Yet, in the Wood decision, justices signaled wariness. The decision includes an inexplicable detour, saying emails aren’t necessarily public records just because they’re stored on public servers. “We do not believe our Legislature intended that result,” it states, then oddly points to other states’ transparency laws to justify this stance.
In Washington, the people, acting as lawmakers in creating the records act, were quite clear about “any” information related to government conduct “retained by any state or local agency regardless of physical form or characteristics” being subject to its provisions.
Perhaps justices were referring to the intent of current legislators, seeking to limit disclosure of the public’s records. But even they’ve maintained language saying the act applies to any record retained by state or local government.