OLYMPIA – The Washington Supreme Court will hear arguments Tuesday on a challenge to the Legislature’s longtime claim that lawmakers and officials can withhold from public view documents such as emails, calendars and reports on workplace harassment.
The case comes before the court as state House officials refuse to release the most recent workplace report prepared by an outside investigator for the Legislature.
Completed this spring, the report reviewed a workplace complaint against state Democratic Rep. Jeff Morris of Mount Vernon.
Morris last year lost his chairmanship of the House Technology and Economic Development Committee shortly after a complaint by legislative staff that he allegedly acted in a condescending and disrespectful manner.
Around the time the review was launched, the veteran lawmaker suggested the allegation could be political payback. After the report’s completion, he declined to comment.
The Seattle Times sought a copy of the report, but House Chief Clerk Bernard Dean in April denied the request. Dean cited a section of the law that the Legislature contends exempts the legislative branch from releasing such documents.
“The document you requested does not fit within the definition of ‘public records’ that applies to the Legislature,” he wrote.
Dean added the review did not involve allegations of sexual harassment and it found that Morris broke no laws.
The Seattle Times then requested that the House Executive Rules Committee, which handles some personnel matters, or Morris himself voluntarily release the report. Neither produced the report.
Supreme Court justices are reviewing the lawsuit brought by news organizations – including The Seattle Times and the Associated Press – challenging the Legislature’s claimed exemption to the Public Records Act.
The case before the court is the latest in the ongoing clash between legislative officials and news organizations over how Washington’s transparency law applies to the Legislature and how much their work and communications the public gets to see.
A Thurston County Superior Court Judge in January 2018 agreed in part with the news organizations ruling that legislative leaders had unlawfully rejected public-records requests because lawmakers’ individual offices are state agencies under the law.
“There can be — and has been no dispute — that if the Defendants are agencies then the records requested are public records,” wrote Michele Earl-Hubbard, the attorney representing the news organizations, in a brief for the Supreme Court.
But legislators have argued that the nature of their work is special and requires some discretion. Many have contended that releasing documents – like drafts of bills that are likely to evolve – could hurt their ability to craft legislation. Other lawmakers argue that sensitive messages they receive from constituents should be protected.
“The value of transparency in government is very strong, but that value has to be weighed against other public interests such as privacy and the proper functioning of government,” Paul Lawrence, an attorney representing the Legislature, wrote in an email Saturday. “The public records act recognizes that balance both by defining the scope of its application and its many exceptions.”
The case also came as the Legislature wrestled to modernize its outdated and politically tinged process for receiving and reviewing complaints of workplace misconduct in Olympia.
Responding to #MeToo, women stepped forward to tell stories of harassment in Olympia and criticize a lack of accountability and transparency at the Legislature when it came to allegations of misconduct.
Those accounts revealed two former lawmakers accused of inappropriate behavior, including one who abruptly resigned in 2011 after an accusation. The revelations brought to light how the Legislature hasn’t always kept records of workplace complaints, and when a woman asked for copies of a complaint she said she had made, legislative officials neither confirmed their existence nor provided records to her.
The state Supreme Court could ultimately decide whether the Legislature has to comply with the same law that directs other state and local governments to release documents like the Morris report.
The case’s “underlying importance is because it involves whether the legislature is subject to the same public records laws as everyone else—for better and worse,” according to Hugh Spitzer, a professor at the University of Washington School of Law.
Meaning of “agency”
The news organizations filed the lawsuit in 2017 after legislators and House and Senate officials rejected a series of public-records requests by news organizations by claiming their exemption from the law.
Those included documents sought that year by The Seattle Times and Northwest News Network related to lawmakers’ work on a landmark K-12 school-funding court order.
Lawmakers and legislative officials also rejected requests for copies of workplace complaints made by staffers at the Legislature, and related investigative reports. Still others asked individual lawmakers for copies of their public calendars from the legislative session and text messages related to their public duties.
Under the Public Records Act, local and state governments routinely provide such documents, which can help voters and taxpayers evaluate elected officials and public servants.
In a January 2018 hearing on the case, Thurston County Superior Court Judge Chris Lanese ruled that lawmakers’ individual offices are subject to the Public Records Act.
“The plain and unambiguous language of the Public Records Act applies to the offices of senators and representatives …,” Lanese wrote in his ruling.
Lanese also ruled partly in favor of the Legislature, saying the act doesn’t apply to the administrative offices of the state House and Senate. Those offices already release certain records specified by law, such as how much money lawmakers bring home in per diem during the legislative session.
Attorneys for the Legislature swiftly appealed, asking to go directly to the state Supreme Court.
Much of their argument – and the initial court ruling – centers around the definition of an agency.
Lanese ruled that legislators’ individual offices count as state “agencies,” which would make them covered by the Public Records Act (PRA).
Changes that legislators made to the law in 2005 and 2007 only underscored the notion that disclosure laws apply to legislators, he said in his order.
In their appeal, attorneys for the Legislature contend that the offices of each legislator cannot possibly count as a state agency.
“The Legislature and its members are not ‘state agencies’ under the PRA,” according to their appeal. “This is supported by the plain meaning of the term ‘agency’ as defined in the PRA, related statutes, the amendments to the PRA over time, as well as by practicality.”
Meanwhile, the news organizations have asked the Supreme Court to reverse the part of the ruling that went against them. They contend that Initiative 276, which voters approved in 1972 to create the transparency law, is meant to include the administrative offices of the House and Senate.
“Initiative I-276, by its definition of ‘agency’ to include ‘every state office, public official, department, division, bureau, board, commission or other state agency’ showed its intention that it apply to the Washington State Legislature …” according to the brief.
Subsequent tweaks to the law by legislators have not changed that, the brief contends.
The ACLU of Washington, the Seattle-based news nonprofit InvestigateWest and the Washington Coalition for Open Government submitted a friend-of-the-court brief supporting the news organizations.
Another friend-of-the-court brief filed by 17 journalism and transparency organizations from around the country, including the Reporters Committee for the Freedom of the Press and the National Freedom of Information Coalition, did likewise.
Even if the Supreme Court rules against them, the Legislature may try to exempt lawmakers from transparency laws or restrict what documents they have to release.
They’ve already attempted it twice since the court ruling.
Shortly after the court ruling, legislative leaders sponsored a bill that would have exempted the Legislature from the Public Records Act.
The proposal would have made some new records public going forward, like final reports on harassment complaints and emails exchanged with lobbyists. But it would have permanently sealed off existing records and prevented any independent judicial review over whether documents should be made public.
Within 48 hours of making the proposal public, lawmakers passed it off the House and Senate floors with no debate after bypassing the traditional lawmaking process.
Washingtonians noticed. Nearly 20,000 people contacted the office of Gov. Jay Inslee, urging him to veto the bill. Inslee took their advice and rejected it.
In this year’s legislative session, Democratic lawmakers floated a revised proposal of changing the Legislature’s status.
That plan would not have formally removed the Legislature from the public-records act and would have made more types of records public, including some existing documents, rather than only future records. But that bill stalled after one committee hearing.