OLYMPIA — After several years of not releasing the work records of lawmakers, House and Senate administrators in Washington state are working through how to deal with the influx of requests they’re receiving now that the state Supreme Court has ruled legislators are fully subject to the same disclosure laws other elected officials are.
Lawmaker public record requests were fulfilled as recently as 2010, but over the years, administrators started citing various changes made to statutes in previous years they said exempted lawmakers, even though the measures did not say that.
The state Supreme Court disagreed with lawmakers’ assertion in a December ruling.
While seven of the nine justices agreed the offices of individual lawmakers are subject to the Public Records Act, six of them ruled that the Legislature is only subject to a much more limited scope of records available through the House clerk and the secretary of the Senate.
While the media and open government advocates hailed the resumption of the release of lawmaker records, there was some concern the limited scope allotted to records held by the House clerk and secretary of the Senate could allow for some records to still be withheld.
That issue came up in the state Supreme Court ruling, with the lead opinion stating that “the specter of a ‘black hole’ of legislative public records is overblown.”
“The standard governing whether an entity must disclose a public record is whether the record requested is “prepared, owned, used, or retained” by that entity, not simply whether that entity possesses the record at the time of the request,” Justice Susan Owens wrote.
But in a separate opinion in that ruling, Justice Debra Stephens warned of the potential that sexual harassment and misconduct reports could be “consumed by the very ‘black hole’ the PRA meant to avoid.”
“The lead opinion says ‘the specter of a ‘black hole’ of legislative public records is overblown’ … yet it looms large,” she wrote.
While the Senate already had a practice of publicly releasing entire reports on investigations of senators for workplace misconduct or sexual harassment before the ruling, the House does not, choosing in the past to instead just release a summary of a report or nothing at all.
Last month the House did release the entire report into Republican Rep. Matt Shea, who is accused of participating in and planning domestic terrorism against the United States with involvement in three standoffs against the government.
But a recent Associated Press request for investigative reports into two former Democratic House members was initially rejected Friday, citing the fact that the reports were held by the clerk.
The AP appealed the rejection, and Saturday the House said the original rejection was sent in error and the request was undergoing a review by the chief clerk of the House.
Chief Clerk of the House Bernard Dean said Monday the House’s policy on releasing full reports is still to be determined, and that any change would need to come from the Executive Rules Committee, which is made up of three Democratic leaders — including new Speaker of the House Laurie Jinkins — and two Republican leaders.
“We want to be in compliance with the law,” Dean said. “Part of the struggle we have is understanding how the ruling applies in this environment.”
The 60-day legislative session began Jan. 13, and House and Senate administrators have seen an sharp uptick in the number of public records requests.
In the month since the ruling, the Senate has received at least 35 requests, compared to the 20 they fielded in all of 2019. In the House, there were 43 requests in December, compared to nine in the previous December. And they’ve already received 40 requests thus far this month.
Secretary of the Senate Brad Hendrickson said the Senate is currently in the process of hiring a second public records officer, and is working with the attorney general’s office and Senate attorneys to implement a records retention policy in conjunction with the House. Dean said the House is potentially looking to hire a third public records officer.
Dean said that several lawmakers have started using legislative cell phones instead of their personal cell phones for work for public records reasons.
Many lawmakers in both chambers have started going paperless, asking lobbyists to send them digital copies of documents they previously printed out in order to make it easier to retain documents under the law.
“It centralizes the record keeping,” Hendrickson said.
Later this week, lawmakers in both the House and Senate will have mandatory training with attorney general staff about the Public Records Act.