The attorney billing statements are among the few types of documents the Legislature does make public. For decades, it has claimed an exemption to the state Public Records Act.
OLYMPIA — The Washington Legislature has spent at least $56,000 in taxpayer money on private attorneys to defend against a lawsuit challenging its exemption to the state’s open-records law, according to billing statements.
The cost could potentially run tens of thousands of dollars higher, as billing statements haven’t all been submitted for the legal work in December and January.
The bills are among the few types of documents the Legislature does make public. For decades, it has claimed an exemption to the state Public Records Act.
As a result, lawmakers and the Legislature’s administrative offices withhold emails, work calendars and records of complaints against elected officials, as well as other documents.
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Local governments, state agencies and the governor’s office routinely make those types of documents public.
In a Friday morning hearing, Thurston County Superior Court Judge Chris Lanese could rule on a legal challenge to that exemption, which 10 news organizations, including The Seattle Times, filed in September.
No matter which way Lanese rules, the decision is likely to be appealed.
Senate Majority Leader Sharon Nelson, D-Maury Island, declined to comment this week on the decision to hire private attorneys, rather than using the state Attorney General’s Office, which typically represents state agencies.
One of the Legislature’s four private attorneys is former state Supreme Court Chief Justice Gerry Alexander; another is Nick Brown, the former counsel to Gov. Jay Inslee.
As for the lawsuit, “We were given advice for over two decades that we were on solid footing, which we believe we still are, on the way we handle public-disclosure requests,” Nelson said during a regularly scheduled news conference.
In an email, House Chief Clerk Bernard Dean declined to comment on the lawsuit or the Legislature’s legal strategy, noting that The Seattle Times is a plaintiff.
Government agencies sometimes hire outside attorneys that specialize in certain legal areas, said Toby Nixon, president of the Washington Coalition for Open Government, an organization that advocates for open records.
But in this case, “I don’t understand why they made that decision,” Nixon said.
Indeed, the Legislature’s attorneys did ask for the Attorney General’s Office to sign on as co-counsel.
But that came earlier this month, and only after the Attorney General’s Office was asked by Lanese to file a friend-of-the-court brief weighing in on the case.
In that brief, the Attorney General’s Office concluded that House and Senate administrative offices — as well as lawmakers’ individual offices — should be subject to the Public Records Act.
“To hold otherwise would be contrary to the plain language and purpose of the Act,” according to the brief.
Attorneys for the Legislature filed an objection to the AG’s brief. And in a news report, one of the Legislature’s attorneys called it “inappropriate” for the Attorney General’s Office to weigh in, and a conflict of interest.
That prompted a letter from state Attorney General Bob Ferguson to one of the Legislature’s attorneys that noted the Legislature chose to be represented by private attorneys, rather than his office.
The Legislature, “can’t have it both ways, demanding that we represent the Legislature and then saying that it would be a conflict for us to have multiple roles in this case,” Ferguson wrote.
He ultimately declined to provide the Legislature co-counsel.
Attorneys for the Legislature have argued that legislation passed by lawmakers over the years properly exempted them from the Public Records Act.
They have also argued that the Act’s definitions of an “agency” or a “state office” don’t apply to the individual offices of lawmakers.
Last April, a report by The Seattle Times and the Northwest News Network showed how legislative leaders use their exemption to withhold documents.
The two news organizations requested emails and work calendars from four legislative leaders. All four lawmakers declined to release records.
Some lawmakers, however, have argued that their records should be more transparent — and have waived the exemption to voluntarily release documents.
Rep. Gerry Pollet, D-Seattle, voluntarily produced his legislative calendar after receiving a records request from news organizations earlier this year.
That 48-page document showed meetings with lobbyists, other lawmakers and interest groups such as the Independent Colleges of Washington.
He released the records, Pollet wrote in an email at the time, “Because I believe that openness and disclosure regarding my public duties are vital for media and public accountability …”
This week, Rep. Drew MacEwen, R-Union, voluntarily disclosed recent meetings on his public calendar, and said he would continue to do so regularly during the legislative session.
In an interview, MacEwen said he had concerns about eliminating the Legislature’s full records exemption.
For instance, lawmakers should be able to keep emails between each other private during the legislative sessions, he said.
“I’m even all right with things being released after session about communications between legislators,” he said. “But during session, you have to be able to collaborate and vet ideas.”
“But by and large,” MacEwen added later, “I’m all for putting more sunshine on everything.”
In an interview, Inslee said that if his office could release records like emails and calendars without diminishing “our ability to be effective,” the Legislature could probably do the same.