OLYMPIA — Washington Supreme Court justices Tuesday considered whether the Legislature should continue to withhold public documents such as emails, lawmakers’ calendars and investigative reports.
Tuesday’s court hearing stems from a 2017 lawsuit brought by 10 news organizations — including The Seattle Times and The Associated Press — challenging the Legislature’s long-claimed exemption to the Public Records Act.
Attorneys for the Legislature have argued that changes made by lawmakers over the years secured their exemption to a law that state agencies and local governments must routinely follow. Lawmakers have held that their work is unique and requires confidentiality that other government entities may not need.
News organizations, however, have argued that the Legislature is not exempt, and it is in the public interest for lawmakers’ records to be released.
Paul Lawrence, an attorney representing the Legislature, told the justices a 2007 change to the law by lawmakers clearly exempted much of the Legislature’s records by changing a definition in the statute, he said.
Justices questioned why lawmakers didn’t explicitly tell the public about such changes at the time.
“I find it puzzling that there wasn’t as much a notice to the public … I don’t recall seeing anything in the paper saying the Legislature exempted themselves from being subject to the Public Records Act,” said Justice Susan Owens. “Did somebody just not pick up on it?”
“Maybe you should ask the media that’s over there,” said Lawrence, referring to reporters in the room. He added that changes in the law were publicly discussed at the Legislature.
Other justices questioned why the changes did not make clear the Legislature was removing itself from the Public Records Act.
“If this was so plain, why didn’t the Legislature just say, ‘This doesn’t apply to us?'” asked Justice Steven González.
Said Lawrence: “It’s hard to make something clearer … when you take away the definition that included legislative office.”
Justice Sheryl Gordon McCloud wondered aloud if that distinction even mattered, if the Legislature did officially change the law.
“What we’re supposed to interpret is what’s on the books now,” said McCloud. “And I see that since 2007, the Legislature actually changed the definition.”
Michele Earl-Hubbard, an attorney for the media coalition, told the justices that keeping the Legislature’s exemption would mean the public could never learn about, for instance, complaints and harassment investigations involving lawmakers.
“Those records would never be able see the light of day … if you find that this entity and the individual elected officials are somehow left out of this law, ” said Earl-Hubbard.
Tuesday’s arguments before the court come more than a year after Thurston County Superior Court Judge Chris Lanese in January 2018 found the Public Records Act applied to individual offices of legislators.
Lanese also found that the act doesn’t apply to the House and Senate’s administrative offices.
Under the Public Records Act, local and state governments routinely must release documents such as emails, calendars, text messages and investigative reports.
For instance, texts released by the City of Seattle, in response to media requests, show Mayor Jenny Durkan and others painting a frank portrait of strategies and motivations behind the city’s surprise reversal of the controversial “head tax” to fund homelessness and housing services.
Investigation reports released by state agencies have detailed allegations that a former Employment Security Department commissioner allegedly made female employees uncomfortable and a prison supervisor allegedly inflated his facility’s budget projections.
Emails released by the Washington State Patrol documented how its executive protection unit, assigned to protect Gov. Jay Inslee, struggled to keep up with the governor’s out-of-state travel schedule. Inslee last year traversed the country as chair of the Democratic Governors Association, and is now traveling as a candidate for president.
Since the 2018 court ruling, lawmakers passed a bill to explicitly exempt themselves from the Public Records Act — vetoed by Gov. Jay Inslee after a wide public outcry. This year, the Legislature considered another bill to govern its own records. Those bills would have made some new records public.
This spring, House officials declined a records request for a report commissioned after a complaint from legislative staff saying Democratic Rep. Jeff Morris of Mount Vernon acted in a disrespectful and condescending manner.
In a formal denial of the request citing the Legislature’s exemption, House Chief Clerk Bernard Dean wrote that the allegations weren’t related to sexual harassment and that Morris broke no laws.
Morris has suggested the allegations could be politically-related and has declined to comment on the findings.
The Seattle Times had asked Morris to voluntarily release a copy of the report, which prompted a second formal records denial by the House.
In an email Tuesday, a House public-records officer said Morris wasn’t given a copy of the review — meaning the lawmaker couldn’t voluntarily release a copy even if he wanted.
The court could issue a ruling in a matter or weeks or months, or take even longer, said Earl-Hubbard.