How does being exempt from public disclosure help WA lawmakers do their jobs? | KUOW News and Information

How does being exempt from public disclosure help WA lawmakers do their jobs?

Feb 26, 2018

How much right does the public have to pull back the curtain and see the communications of their state lawmakers?

Washington state has had a Public Records Act since 1972. News organizations love it. It’s how we find out the stuff that sometimes people would rather we didn't see. 

But lawmakers say there needs to be some limits to what information is public and that they need some degree of privacy to do their jobs.

Last Friday afternoon, with broad bipartisan support, they voted to remove themselves from the Public Records Act.

KUOW's Bill Radke spoke with Associated Press state capitol correspondent Rachel La Corte about this issue for The Record. 

This transcript has been lightly edited for clarity.

Will you briefly describe the Public Records Act for newcomers? How does the media use it?

So as you stated, it was a voter approved initiative that passed in 1972. It had not just to do with public records but also campaign finance disclosure. It was a broad open government initiative and has been widely understood to apply to all elected officials — local, statewide, and employees at state agencies.

Within the past several years though, the legislature has claimed that it's exempt from the state Public Records Act. And they would deny requests that we would make for things like calendars or emails — things like that. And we would say, "No, we're pretty sure you're subject to the law."

And they'd say, "No, no we're not."

And we kind of went back and forth like that for a couple of years until last year a coalition of news organizations decided to get a final judicial ruling on that and see, well, are they? I had done a lot of research looking into the history of language that they cited, that they said made them exempt. And it just didn't ring true to me. And so this coalition of news organizations filed suit in September arguing that they are subject to the Public Records Act.

A month ago, on January 19, a superior court judge agreed that all state lawmakers are fully subject to the act. And then you saw what happened this week — a bill was quickly introduced on Wednesday. There was no official public hearing or committee vote. There had just been an informal work session that was organized less than 24 hours after the bill was introduced. And then one of the quickest votes I've ever seen in the legislature by both chambers.

Full disclosure, The Associated Press and public radio's Northwest News Network are party to this lawsuit over how the Public Records Act applies to lawmakers. And we did reach out this morning to some lawmakers who support this change — we couldn't work out the schedule with any of them to come on the radio during today's episode of The Record.

So let's talk first about the argument: You said the judge ruled against the legislature, and the legislature is appealing this. Why do they say that they ought to be exempt from the Public Records Act?

Well, again, to be clear the bill they passed on Friday exempts them from the state Public Records Act but creates this new carve out for legislative disclosure obligations. It's a much more limited disclosure law starting on July 1, so the law would be retroactive. That means any records that would have been due to the media group that the judge ruled in favor of are exempt and will not be released.

But starting July 1, things like information from their daily calendars, correspondence with people outside of the legislature who are not constituents, and any sort of final disciplinary report — so, those are records that they will release, that they previously did not release (according to a judge, illegally) that will start on July 1.

But this case is currently under appeal. They've appealed for direct review to the state Supreme Court. The state Supreme Court hasn't said whether they'll take it directly or kick it back down to a lower court. And so lawmakers argued that the emergency was that a stay hasn't yet been issued in this case. They inaccurately say that the Superior Court judge refused to issue a stay. That's not true. Their lawyers didn't ask for a stay from that court, but they have asked for a stay from the Supreme Court and that's still pending.

I think there were recent filings in that direct review case just this week. So we're still waiting to see what the Supreme Court has to say, but of course you know, what with this bill passing, it’s unclear. I think we know what the next step for the legislature is, is that they're going to ask that the case get tossed out completely.

So you said the Legislature is willing to release all these records retroactive to July 1?

No, no, no — the law is retroactive. So that means they will not release any documents from before July 1 of this year. 

So is the only argument about records from July 1 into the past?

No. That's a major concern as well. But the limitations on the proposal that passed, there are several things that open government advocates have great concern about. One of them is the lack of judicial review, which even at the work session, one of the lawmakers on the committee asked a staff member, "Are we even legally allowed to do that?" And no one seemed to know the answer.

So under the current state Public Records Act, if you feel you have been denied a record unjustly, your recourse is through the courts. They take that option away under this measure. The final arbiters will be the Senate Facilities and Operations Committee and the House Rules Committee. And so the main problem with that is that they're the ones who reject your request, and then they're the ones who deny whether you were denied unjustly.

And Senate F and O Committee, at least they send out their schedule in a public way, and the media is allowed to go to that. The House Rules Committee sends out no such public disclosure. We've even asked before in previous years, "Hey can you guys let us know when your rules committee is meeting?" And we've been told that it's mostly done by telephone. So there is some concern about transparency for the final deciders on whether something has been denied unjustly.

Also, just the limitation on the final disciplinary record. A lot of what sparked our concern about records we weren't getting from the legislature has to do with concerns about sexual harassment and misconduct, which has been in the news quite a bit this past year. And we know for a fact that some of these things are  handled behind the scenes and there's no official report that's ever issued.

So a lot of times when we learn about issues like that at the legislature, they're often leaked to us, and it's not that there's any sort of official report. Will that change now that they've created this this new carve out? I guess we have to trust that they'll do that. But they haven't done it previously. So there are a lot of concerns about black hole areas of information under the law that passed.

There are areas that some legislators say they might need to keep more private than news media would like. In fact, Senator Sharon Nelson for Maury Island said that responding to all of the media's public disclosure requests would make legislating more difficult. How does being exempt from public disclosure help lawmakers do their job?

Well, and that's an argument that we've heard a lot. And there have been a lot of local, county, city elected officials who have been like, "Hey, we've been able to do it."

There is a concern about a burden that is put on because of some of the high volume of public records requests. And people have said there is a conversation to be had about that. And even at that work session, one of the publishers who came down on Thursday was like, "Let's slow this down and talk about it and have a full conversation about how to make it so that the state government doesn't grind to a halt because they're responding to public records requests."

Another issue that they raise is this whole idea of constituent privacy. And I can guarantee that the media here, we're not wanting to read every single constituent's personal story, if they're going to a lawmaker to talk about something that's very sensitive. There's already exemptions within state law under the state Public Records Act when it relates to invasion of privacy. Basically, already an exemption exists that if something would be highly offensive to a reasonable person, it is not of legitimate concern to the public, that information can be made exempt. They already have a vehicle to exempt some of the most sensitive constituent email from disclosure. And if they felt that it needed to be tightened up a bit, the lobbyist for the newspapers noted that you can make specific exemptions for the existing Public Records Act to address some of those concerns as opposed to exempting wholesale the legislature out of that and creating some new carve-out for them.

What does Governor Inslee say about lawmakers exempting themselves from a voter approved to open government law?

The governor has long said that he thinks the legislature can be as transparent as he is. Now it's important to note that the state Supreme Court did rule a few years ago that the governor's office has what's called an executive privilege. They did put some sideboards around it, so it was never a blanket exemption like the legislature has long claimed. Basically, as long as there is a policy discussion that's ongoing, that information can't be released. But after the fact, it can be. So for example, contract negotiations with state workers: We can't get that information while it's in process, but we can get it afterward.

But that said, the governor, since he took office, hasn't claimed executive privilege to not release other information. And he has said that he thinks the legislature can act as he has acted. That said, he hasn't said what he's going to do one way or another. Lawmakers have been posting on social media and in emails they are sending to constituents that the governor is not going to sign it and it will just take effect this week. I've asked the governor's office whether he is going to do that — if the governor doesn't take any action, the law automatically takes effect. If he vetoes it, it has to go back to the legislature. They passed the measure with what's called veto proof margins — 41:7 in the Senate 83:14 in the House. They just need two thirds of the legislature to override a veto. They far surpassed that in both chambers.

But the open government advocates who were asking the governor to veto it have said, "Make these lawmakers think about whether they want to take that vote again," because a good deal of them are probably hearing from their constituents at this point.

We still don't know what the governor is going to do. He's currently in D.C. for the National Governors Association meeting. I believe he's back tomorrow. I think there's some lack of clarity on whether it's Thursday or Friday on when he has until, but he has to take some kind of action or else that the bill becomes law immediately.

Do you think there might be a voter initiative around this?

We've heard some chatter about that on Twitter and elsewhere. But you know an initiative, it's a bit of a high burden for the public to get that to the ballot. The media coalition's lawsuit is still in process and so the attorney for that coalition has said the retroactivity of the bill, in order to erase a negative court ruling against said entity, is going to be challenged by the group.

So there's not much that can be done about the "July 1, going forward" element of the law. But the retroactivity that says that court ruling never happened because we retroactively said, "We were never subject to the public records act," that is something that the attorney said will be challenged.