The decision rejected a longstanding assertion by Democratic and Republican leaders of the Legislature that lawmakers were not subject to the records law that has routinely applied to other government entities across Washington, from state agencies and the governor’s office to city councils and police departments.
Justice Susan Owens wrote in the ruling that “under the plain meaning” of the records act, “individual legislators’ offices are ‘agencies’ subject to the PRA’s general public records disclosure mandate. Legislative history confirms rather than contradicts our conclusion. Accordingly, we hold that the News Media Plaintiffs are entitled to judgment as a matter of law on this issue.”
Thursday’s ruling, which upheld a lower-court decision, came in a long-running dispute in which 10 news organizations — including The Seattle Times and The Associated Press — filed a lawsuit that challenged the Legislature’s claim that lawmakers are exempt from the state’s 1972 voter-approved Public Records Act.
In a smaller loss for the media plaintiffs, the court majority ruled that the Legislature’s administrative offices are not “agencies” and are more narrowly subject to the open-records law, which could constrain the release of certain internal documents available only to the House Clerk and Secretary of the Senate.
Under the Public Records Act, government entities routinely release documents such as emails and calendars of public officials, as well as investigative reports related to allegations of harassment. But state lawmakers and legislative officials have denied requests for such records, citing changes they made to that law that they claim closed their records to the public. Legislators also have argued their work in Olympia is unique and requires confidentiality.
Thursday’s Supreme Court decision was hailed as a “huge” victory by Michele Earl-Hubbard, the attorney for the media coalition.
“We now finally have — after decades of fighting — a decision telling the Legislature, telling the public, that individual legislators are subject to the Public Records Act — and always have been,” she said.
While the court’s primary finding opening legislative records was clear, justices dissented on some matters.
Owens’ plurality opinion, opening up individual lawmaker records but partially exempting House and Senate administrative offices, was joined by Justices Mary Fairhurst, Charles Wiggins and Barbara Madsen.
Justice Debra Stephens, joined by Mary Yu and Charles Johnson, favored a more expansive ruling that also would have classified the Legislature’s administrative offices as state agencies fully subject to the records act. Their partial dissent quoted James Madison: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”
Two justices, Sheryl McCloud and Steven González, dissented on opening the Legislature’s records, arguing lawmakers had specifically carved themselves out of the records act.
House Speaker-designate Laurie Jinkins, D-Tacoma, issued a statement Thursday saying House Democrats “believe in open and accountable government” and would review the court’s ruling “to move forward on implementing the decision to ensure transparency in government for Washingtonians.”
Senate Majority Leader Andy Billig, D-Spokane, said the Legislature had started taking steps to establish “an institutional infrastructure to help respond to public-records requests, store documents and take other measures to increase public access.”
Like most state lawmakers, Jinkins and Billig voted in favor of a controversial 2018 bill — eventually vetoed by Gov. Jay Inslee — that would have specifically exempted the Legislature from the records law.
Toby Nixon, president of the Washington Coalition for Open Government, said he hopes lawmakers won’t react to the high-court decision by trying again to wall off their records.
“We very much hope that legislators stop resisting the people’s right to know what they are doing,” he said. As a Kirkland City council member, Nixon noted that he and other local officials have long been subject to the records law.
In a statement Thursday, State Rep. Gerry Pollett, D-Seattle, said he will strongly oppose “any legislative effort to weaken the public’s and media’s right to know by amending the Act to reduce legislative openness.” He urged his colleagues to “to immediately hire more experienced records staff, train all legislators to comply with the court’s decision, and prepare to release investigation reports on legislator or staff misconduct.”
Thursday’s Supreme Court ruling affirmed a January 2018 decision by Thurston County Superior Court Judge Chris Lanese, who ruled partly in favor of the news organizations, writing, “The plain and unambiguous language of the Public Records Act applies to the offices of senators and representatives …” However, Lanese also ruled that the law doesn’t apply to the administrative offices of the state House and Senate.
In a hearing before the state Supreme Court in June, attorneys for the Legislature argued that changes legislators have made to transparency laws over the years have enshrined their exemption.
Public-records advocates and news organizations, however, have argued that the Legislature is not exempt from the law, and that the public has a right to see legislative records.
The legal challenge has twice led lawmakers to try to change the law.
Shortly after the 2018 ruling, lawmakers released and passed a bill — all in 48 hours — that exempted the Legislature from the Public Records Act. That proposal would have made some records, such as emails from lobbyists, public going forward.
After intense public outcry, Inslee — who received about 19,000 letters, emails and calls, nearly all opposed to the bill — vetoed the legislation.
Earlier this year, Democratic lawmakers proposed another bill that would have opened up additional records as “a good-faith offer at a compromise” while the lawsuit awaited its state Supreme Court hearing. Lawmakers, however, shelved that piece of legislation after criticism from news organizations and open-government advocates.
The Supreme Court ruling remanded the case back to Lanese to work out details on release of records that had been requested by media organizations, and to determine penalties for violations of the records act and whether to award legal costs to the plaintiffs.
The judge could impose penalties of up to $100 per day for each page of records wrongfully withheld.
That’s in addition to the state’s own legal costs. The Legislature, which normally would be represented by the attorney general’s office, chose instead to use two private law firms, paying about $350,000, the Associated Press reported.