State legislators pass exemption from Public Records Act and own disclosure rules

By Josh Kelety

WNPA Olympia News Bureau

OLYMPIA — In votes with veto-proof-wide margins, state legislators made themselves exempt from the voter-approved Public Records Act and enacted their own rules for public disclosure.

The legislation, SB 6617, was passed through both the Senate and House in a three-day sprint with no public hearing as an emergency measure following a January court ruling that found the Legislature subject to the Public Records Act.

The law takes effect immediately and exempts the state lawmakers from the Public Records Act retroactively, shielding them from disclosure information on reports of possible sexual harassment or assault in the Legislature that a group of news organizations had sought and sued for last year.

Now members of the state Senate and House can opt not to disclose a variety of documents, such as correspondence with anyone they consider to be their constituents.

The bill would allow disclosure of some records, such as communications between lawmakers and registered lobbyists, if created after July 1, 2018.

The bill was introduced on Wednesday and was rushed to floor vote two days later. It passed the Senate 41-7 with no debate and, shortly after, was approved in the House by 83-14 — wide margins that preempt a potential veto from Gov. Jay Inslee, who does not use executive privilege to shield his correspondence from public disclosure.

The fast-tracked legislation follows a Jan. 19 ruling from Thurston County Superior Court Judge Chris Lanese who decreed that the Legislature is subject to state public disclosure laws.

Last year, The Associated Press, the Washington Newspaper Publishers Association (WNPA), Sound Publishing — which owns the Peninsula Daily News, Sequim Gazette and Forks Forum on the North Olympic Peninsula — and other regional news organizations sued the Legislature after it denied their requests for documentation of any sexual assault and harassment complaints filed against all 147 lawmakers.

After the ruling in Thurston County Superior Court, lawyers for the Legislature promptly appealed the ruling to the state Supreme Court. Then lawmakers set to work re-writing the public records law.

Government transparency advocates and journalists criticized the bill and the breakneck pace that it was pushed into law as a cynical attempt by the elected officials to get around the judge’s January ruling.

“I think that both the process and the bill itself are abominations. The process demonstrates the utter contempt that legislators hold for public participation in the legislative process,” said Toby Nixon, president of the Washington Coalition for Open Government. “The bill has so many things wrong with it.”

Michele Earl-Hubbard, the attorney representing the news organizations in the ongoing court case, said on Thursday that “there will absolutely be litigation” if the Legislature passed SB 6617.

“The state Legislature thinks they need something special and that they need to operate in secrecy,” she said. “It’s really despicable what they’re doing.”

Six members of the public were briefly allowed to testify on the bill during a “work session” with members of the Senate and House committees concerning state government the day before legislators voted it into law. The testimony was unanimously opposed to the legislation.

“You’re running the risk of demonstrating to the people that you’re setting up an imperial Legislature that is not subject to the people,” said the publisher of The Olympian and The Tacoma News Tribune, David Zeeck.

“You don’t shove through something this important with that short of a time frame, no public hearing, no committee meetings on it,” said Gordon Padget, a Vancouver resident who drove up to Olympia on Thursday morning to attend the work session. “Do you think the people are going to trust you as state legislators if you enact this?”

Prior to Friday’s floor vote in the Senate, the legislation’s two primary sponsors, Senate Majority Leader Sharon Nelson, D–Maury Island, and Senate Minority Leader Mark Schoesler, R–Ritzville, framed the legislation as boosting government transparency.

“This is a step forward in transparency,” Nelson said.

Minutes after the bill’s passage in the Senate, it was transmitted to the House where it was given similar praise by members.

Rep. Matt Shea, R-Spokane Valley, said the bill is a response to the January court order and that the Legislature is not subject to public disclosure laws because it is not a state agency.

“We’re the ones that have oversight over state agencies. We are a separate branch of government and this bill restores, very clearly, the separation of powers,” he said.

Other government elected officials, including members of city councils, county commissions and school boards are still subject to public disclosure laws and are not affected by SB 6617.

Rep. Mike Pellicciotti, D-Federal Way, who was one of the House members who voted against the bill, said after its passage that he was “disappointed” in the vote.

“We could do a better job that better meets the expectations of the public related to open government,” he said.

Besides AP, Sound Publishing and WNPA, 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, Tacoma News Inc. and The Seattle Times.

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This story is part of a series of news reports from the Washington State Legislature provided through a reporting internship sponsored by the Washington Newspaper Publishers Association Foundation.

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