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Washington state capitol.
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A reporter annotated our conversation on public records with a state senator via Twitter

Last year, lawmakers in Olympia rushed to exempt themselves from the Public Records Act.

The exemption bill passed just 48 hours after it was introduced and included a clause that prevented challenges to the legislation in court.

While lawmakers who voted for the bill argued that it was a way to make some records public — like lawmakers' calendars, communications with lobbyists and final disciplinary proceedings that were designated as public records— the bill actually only made future communications public, and kept all past records under lock and key.

Lawmakers passed the bill after a Thurston County judge ruled in favor of news organizations that sued the Legislature over its unwillingness to release documents to reporters and members of the public who requested them. Some of the plaintiffs in the lawsuit were seeking documents on sexual harassment complaints filed against legislators.

But even though the exemption bill passed swiftly, Gov. Inslee vetoed it after intense criticism from open government advocates and journalists.

Senator Jamie Pedersen (D-Seattle), the chair of the Senate Law and Justice Committee, voted for last year's bill. This year, however, he's proposing a new bill that would subject lawmakers to the Public Records Act. While some have praised Pedersen's bill as a step in the right direction, critics have also argued that it treats legislators to special privileges.

Sen. Pedersen came on KUOW to talk about the aftermath of last year's disastrous public records bill and what this legislative session holds for transparency. Tweeted annotations are provided by Melissa Santos, political reporter for Crosscut.

Senator Jamie Pedersen on The Record, February 7, 2019

Transcript has been lightly edited for length and clarity.

Bill Radke: Is there anything you want to tell listeners — maybe some people just got here, just moved here — why was there such a rush to exempt the legislature from the state open records law last year?

Sen. Pedersen: First of all, I want to say that I don't think that there's anybody here who, in hindsight, would defend the process from last year. We generally know how to go about considering legislation and hearing from all sides, and we made a big mistake last year in not following that process.

Radke: Why? People make mistakes, but why did it happen that way?

Sen. Pedersen: That's a good question. There are probably a lot of reasons for that. The decision from Judge Lanese in Thurston County Superior Court I think created a sense of real urgency because of the sense within the Legislature that the decision was almost completely unworkable and didn't give either side what it was looking for. The question is really a question about what the voters meant 45 years ago when they passed the initiative that included the Public Records Act. The legislature has considered itself not covered by that act the same way that the judicial branch is not covered by that act. In fact, the year before the initiative passed, the legislature had passed its own law talking about what records it had that would be made public.

Radke: So why would the Legislature be exempt? City councils and county councils all across the state have to deal with the Open Records Act.

Sen. Pedersen: The Legislature would be exempt because it isn't covered [under the Public Records Act]. The law talks about agencies, and I think there's a pretty strong argument historically that the purpose of that act was to cover executive branch agencies and local governments, which are agencies of the state government.

Radke: But why not the state legislature? What would be the reason the state legislature would be any different from local legislatures?

Sen. Pedersen: The Constitution already covers a whole set of records and proceedings that are required to be done in the open. So I think the the idea is that those constitutional provisions essentially occupy the field and state when records should be open. That's the theory.

Radke: So the Legislature's attempt to exempt itself from the Open Records Law ended in a veto by the governor, and now you are back with a bill that would subject lawmakers to the Public Records Act, but there are exemptions like communications with whistleblowers, deliberative processes, legislators communicating with staff or other legislators, and several others. Why so many exemptions?

Sen. Pedersen: First let's step back for a second and look at the bill as a whole. So the idea is that it would explicitly subject the legislative branch to the same rules as executive branch agencies and local governments are subject to.

I'll just say this is a proposal that is just beginning its process. It's going to have its first public hearing next Wednesday in the Senate State Government, Tribal Relations and Elections Committee, and it creates three buckets of exemptions that are specific to the Legislature. I think you were somewhat overbroad in describing them because the bill does not exempt all communications among staff and members.

One set of exemptions has to do with whistleblowers. So we have folks who are employees – sometimes contractors, sometimes recipients of benefits – who tell us about improper governmental action and the bill would protect those communications so that we can carry out our constitutional responsibility for oversight and accountability.

Second category of exemptions has to do with constituent communications. Last year's bill would have said just as a blanket matter all of those were exempt from disclosure. This bill tries to find a compromise and it says that personally identifying information – names, telephone numbers – of people who contact us can be shielded if the person is not a lobbyist. If the person is a lobbyist, then it has to be disclosed. Even for constituent communications from non-lobbyists, the record the rest of the record after that redaction had been made would have to be disclosed.

Radke: The Washington Coalition for Open Government says that they don't think that your bill – and it's early early in the process – but they say the proposal doesn't go far enough. Specifically, they say that investigative documents should be unsealed. Why should they not be unsealed?

Sen. Pedersen: There is a very robust debate going on within the Legislature right now about the workplace climate and allegations of harassment by members. You've seen some of that be voluntarily disclosed. This is an interesting point because Judge Lanese's ruling last year said that those documents, which are maintained by the branch – by the Secretary the Senate and the Chief Clerk of the House – will never, ever have to be public. Not only the investigative reports, but the final reports, the final conclusions don't ever have to be released under current law. The bill would make all of the future reports and all of the past reports immediately disclosable. So I think it's a big step toward transparency for us. In terms of the underlying documents, the question is will witnesses feel free to come forward if they know that their identities are going to be publicized?

Radke: Couldn't it just be redacted?

Sen. Pedersen: The problem is [the Legislature] is a very small place. We have 147 members. The concern is – and this is a concern from staff that will be vetted and balanced as the bill moves through the process – the concern is that it will be very easy for people to figure out who is making the statements, who's making the complaints, even if the details were redacted.

Radke: I have heard the reasoning that when it comes to legislators discussions with one another and staff about legislation that that's just the sausage making process. You said that you're early in the in the process on this bill, and maybe there's horse trading, maybe there's trial balloons – what if this, what if that. That's how legislation happens, and it needs to be that way. I have heard this reasoning from legislators before. Are you one who feels that way?

Sen. Pedersen: I do think that absolutely there are parts of what we do, ideas that get floated, that work better if you can have those preliminary proposals – those draft proposals – shared without having to worry that they're that they're going to wind up on the front page of The Seattle Times or that the Tacoma News Tribune.

Radke: But the Seattle City Council has to comply with with with this transparency.

Sen. Pedersen: There's no other body in the state that has more than nine people in a legislative body.

Radke: So it's the size of the legislative body that matters?

Sen. Pedersen: It's the size of this legislative body makes this a horse of a different color, in my opinion. (...) I haven't ever served on a city council, but on a city council our county commission where you're where you're looking at three or five or seven or nine people, a lot of things can just happen orally and probably don't ever get into records. When you're dealing with needing to get at least 50 people on the same page in the House and at least 25 people on the same page in the Senate, if we had to do that without ever having anything in writing, it would significantly complicate the process of compromise.

Radke: So the small lawmaking bodies get around the open records law by just having a voice chit chat so they don't have to disclose all the horse trading?

Sen. Pedersen: I think there is very little question that the public records law has led to very creative ways that local governments have developed over time of just not having records.

Correction, 4:15 p.m., 2/12/19: This story has been corrected to reflect Gov. Inslee's veto of the 2018 public records bill.

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