Sen. Jamie Pedersen proposes to affirm the Legislature is subject to the state Public Records Act, but with certain records exempted from disclosure.
Last week, The Seattle Times editorial board criticized a bill I introduced to apply the state Public Records Act to the Legislature, accusing legislators of “deceptively billing this new legislation as a step toward greater disclosure.” I am grateful for the opportunity to provide a different perspective.
I began working on this bill following last year’s debate on public records, which was a painful learning experience for everyone in the Legislature. Since then, I have sought and listened to feedback from my constituents, news-media representatives, open government advocates and my colleagues.
Senate Bill 5784 makes it clear the Public Records Act applies not only to executive-branch agencies and local governments but to the legislative branch as well. I had hoped it would create an opportunity for a robust public conversation that would provide suggestions to improve the bill as it makes its way through the legislative process.
I was therefore surprised and disappointed to see the Times render judgment on the bill less than 48 hours after its introduction, describing it as “much like” last year’s bill that drew widespread criticism. Contrary to that depiction, this bill differs from last year’s bill in several critical respects:
• First, it would write the legislative branch into the existing act and apply the existing definition of public records to the Legislature. Last year’s bill, at the heart of the controversy, created a separate statute to govern legislative records and separate criteria for which records would be disclosed.
• Second, it would apply to all legislative records, whether created before or after the bill’s passage. Last year’s bill maintained confidentiality of past records and applied only to future records.
• Third, the courts would have the final say on whether a record should be disclosed. Last year’s bill left that up to the Legislature.
• Fourth, this bill makes correspondence we receive from constituents and others public, with personal information redacted. Last year’s bill would have protected all of that correspondence from disclosure.
The bill does create three categories of records that are exempt from public disclosure. This is consistent with the structure of the Public Records Act. State agencies such as the Employment Security Department and the Department of Revenue have specific exemptions to protect citizens’ privacy, for example, and the Department of Social and Human Services has exemptions to shield the identities of children and families.
I believe that the Legislature also needs exemptions appropriate to its unique role in our democracy. I expect these exemptions will be the subject of vigorous debate during Wednesday’s hearing.
The exemptions include (1) whistleblower complaints, to protect the Legislature’s ability to carry out its oversight and accountability role; (2) information that reveals the identities of people who contact us (unless the person is a registered lobbyist), to protect the right of citizens to petition their government for redress of grievances; and (3) internal process documents, such as drafts of bills that never get introduced and ballots for leadership elections, which are secret even from other legislators.
There has been some confusion about how records of misconduct investigations are treated under the existing Public Records Act. The Thurston County Superior Court held that the Secretary of the Senate and Chief Clerk of the House, which are the custodians of all such records, are not “agencies” for purposes of the Public Records Act. Because such records are not included in the definition of “legislative records” that must be disclosed by the Secretary and Chief Clerk, under current law those records are not subject to disclosure. That is one of the reasons that the news-media organizations have also appealed the decision to the state Supreme Court.
By contrast, SB 5784 would immediately subject final investigative reports, past and present, to public disclosure. It would shield the underlying documents, such as witness statements, from disclosure to protect witnesses from retaliation. This was a major concern of legislative staff, but will undoubtedly be subject to discussion and debate as the bill moves through the process. Before the bill could be become law, it would be the subject of multiple public hearings and floor debate over the next two months or so.
Without action from the Legislature, all of these issues will remain in the hands of the state Supreme Court for the foreseeable future with no guarantee of which way the court will decide.
Our state has numerous examples where we worked together to solve complex problems. My legislation is a sincere attempt to provide the transparency the public sought when it passed the Public Records Act.
I hope we can have a reasonable dialogue on this bill’s merits.