WA lawmakers are subject to public disclosure law on paper. But are they in practice?

In 2019, the Washington Supreme Court ruled that state legislators are subject to the state's public disclosure law.

In the last year, however, many public records requests of this nature have been denied, with records officers citing something journalists haven't heard of before: “legislative privilege.”

In August 2021, Pluribus reporter and former KUOW state government reporter Austin Jenkins put in a public records request for a story he was working on about the Washington State Legislature. He was looking for emails from a particular legislator.

Documents like emails, calendars, and texts from the legislature are considered public records thanks to a 2019 ruling by the Washington Supreme Court.

In Jenkins' case, this request was fulfilled like any other. After a couple of months, Austin got the first installment. But then came the second installment.

"When the second installment was delivered in July of last year, that was when the legislature started to claim 'legislative privilege,'" Jenkins said. "I had not seen this term before and it was surprising."

There is some precedent for privilege against being subject to public records at the gubernatorial level, but this kind of shielding at the legislative level is new.

Jenkins went to a public records attorney and filed an appeal to the decision, which was similarly denied by the chief clerk of the House.

"It seems as if the legislature or legislators have come up with — perhaps invented — a way around this, a way to not release records that they don't want to release," Jenkins said. "And that raises the stakes and has even broader implications for public transparency."

Shauna Sowersby, a state government reporter for McClatchy, ran into similar problems when she was requesting public records regarding the 2021 State Redistricting Commission.

"The legislature has been telling us they say that this is something that has always existed in the state constitution," Sowersby said.

Washington's public records law currently does not extend to comments made while in debate on the legislative floor. So far, Sowersby reports that Democrats and Republicans in Olympia have used legislative privilege to block public records requests.

Open government advocates argue, however, that this does not extend to texts, emails, or other media that are part of debates off the floor. Arthur West, who recently won a settlement in a lawsuit against the Washington State Redistricting Commission over improperly withheld and destroyed records, announced an additional lawsuit he's bringing over the application of so-called legislative privilege.

You can read more of Shauna Sowersby's reporting here.

You can listen to the full Soundside conversation by clicking the "play" button on the audio above.