OLYMPIA — A day after Washington lawmakers introduced a bill to exempt themselves from the state’s voter-approved Public Records Act, they held an informal work session on the measure a day before both the Senate and House are set to take final votes to pass it out of the Legislature.
Even lawmakers on the committee noted that many of them were still trying to sort through the bill, which has been put on a fast track as the Legislature is in the midst of appealing a Jan. 19 ruling of a superior court judge who sided with media groups, led by the Associated Press and including Sound Publishing — which owns the Peninsula Daily News — who had argued lawmakers had illegally been withholding documents like daily calendars, emails and text messages.
“We are not the authors of this bill,” said Democratic Sen. Sam Hunt. “We’re learning about it as we go along too.”
Thurston County Superior Court Judge Chris Lanese ruled state representatives and senators and their offices are fully subject to public disclosure requirements that cover other local and state elected officials and employees at state agencies.
The bill, co-sponsored by Democratic Senate Majority Leader Sharon Nelson and Republican Senate Minority Leader Mark Schoesler, would officially remove the legislative branch from the state’s Public Records Act, but would allow release of some correspondence, “specified information” from lawmaker calendars, and final disciplinary reports beginning July 1.
SB 6617 would make the Legislature exempt from the Public Records Acts and would create the Legislature’s own rules for disclosure.
“We have heard the concerns of reporters, editorial boards, and open government advocates and believe this bipartisan approach addresses many of their concerns regarding a need for additional transparency from the Legislature,” said Sen. Kevin Van De Wege, a Democrat from Sequim, who said he plans to vote for the bill.
“The recent court order is unworkable,” he continued. “It treats individual members as separate government agencies.”
He said that the Thurston County court order would mean that all 147 members of the Legislature would be required to adopt Washington Administration Code and individual disclosure policies, be required to have copying facilities available and to have each of their offices available at least 30 hours per week to respond to public record requests and allow for a review of public records.
Each office also would have to have an individual public records officer for each member office.
However, Van De Wege — who represents Legislative District 24, which covers Clallam and Jefferson counties and part of Gray’s Harbor County — said that the bill also would make more information disclosable than is now the case.
“The bill says that everything from a paid lobbyist is disclosable but communications from constituents is not,” Van De Wege said. “I think that’s great.”
Neither Reps. Steve Tharinger nor Mike Chapman — both of whom also represent District 24 — were available for comment Thursday.
Because the law would be retroactive, it would prohibit the release of the records being sought by the coalition of news organizations who filed suit.
“It’s breathtaking to have a bill show up this late in session on this most important issue and for the Legislature to step into an ongoing lawsuit at this moment, albeit not going well for you,” said Rowland Thompson, executive director of Allied Daily Newspapers of Washington.
Instead of an official public hearing, a more informal work session was hastily scheduled after the measure was introduced, though public testimony was allowed. With no committee vote, the bill has already been pulled directly to the Senate floor for an expected vote today. The House is expected to take it up and pass it the same day.
“Everything about the way this bill is being handled makes the average citizen leery of the legislation, leery of everyone in the Legislature,” said retiree Gordon Padget, who drove up from Vancouver, Wash., to testify.
Under the measure, exemptions from disclosure would include records of policy development, as well as any records that would “violate an individual’s right to privacy.” While final disciplinary reports against lawmakers would be subject to disclosure, emails or other documentation of allegations of things like sexual harassment or misconduct that doesn’t result in an official report would not.
Any person wanting to challenge a records denial would have to seek review by the Senate Facilities and Operations Committee or the House Executive Rules Committee, whose rulings would be final.
No review by the courts would be allowed.
Nelson, the sponsor of the bill, said Wednesday that lawmakers decided to take action instead of letting the legal case play out in part because of the growing legal costs to taxpayers, but also because the ruling, if upheld, “puts us in a situation where we can’t function.”
“This is really a first step to try and strike a balance between concerns I hear from legislators and concerns I hear about open government,” she said.
Van De Wege also called it a “first step,” and added that “if aspects of this plan do not work in practice, I am open to looking at additional ways we can ensure the Legislature operates in a way that is more transparent.”
He said that SB 6617 would make additional records open to the public and press, including final dispositions of investigations and disciplinary proceedings; legislators’ calendars, including the names and dates of individuals and organizations with whom they’ve met; and legislators’ correspondence on legislative business to and from persons outside the legislature. That includes email and text messages.
The measure has an emergency clause attached, which means that instead of taking effect 90 days after the end of session, like most bills, it would take effect immediately, ensuring that there could be no referendum to challenge it.
David Zeeck, publisher and president of The News Tribune, The Olympian and The Bellingham Herald, told lawmakers the Legislature should hold off on moving the measure until the 2019 legislative session so that the public has the proper chance to weigh in.
“I think you’re running the risk of demonstrating to the people that you’re setting up an imperial Legislature that’s not subject to the people knowing what it’s doing, particularly when you have no judicial review,” he said.
At least two of the lawmakers who were part of the work session said afterward that they would be voting against the measure in their respective chambers: Republican Sen. Mark Miloscia and Democratic Rep. Mike Pellicciotti, who released his records to media last year.
“The public has a right to have access to our public records,” Pellicciotti said. “If the court has spoken, we should honor what the court has already said.”
Besides AP and Sound Publishing, the groups involved in the lawsuit are public radio’s Northwest News Network, KING-TV, KIRO 7, Allied Daily Newspapers of Washington, The Spokesman-Review, the Washington Newspaper Publishers Association, Tacoma News Inc. and The Seattle Times.