Washington state lawmakers make speedy move to shield their records from the public
The seattle times, february 23, 2018
By Joseph O’Sullivan, Seattle Times Olympia bureau
Ever seen legislation in Olympia move this fast? With no debate, the Washington state House and Senate approved a bill Friday that makes some legislative records public starting in July — but shields records that already exist.
OLYMPIA — Forget everything you ever learned about how a bill becomes a law. Forget those public hearings, floor debates and deliberations.
With breathtaking speed, Washington lawmakers passed a bill Friday that removed themselves from the state’s voter-approved Public Records Act — keeping years of emails and other documents off-limits and making the Legislature its own gatekeeper when it comes to secrecy.
Senate Bill 6617 passed the Senate, without debate, 41-7. Minutes later, House lawmakers approved it 83-14.
Legislators passed the bill only 48 hours after it became public.
Legislative leaders would not say who drafted the bill, why it came so late in the legislative session and why it didn’t go through the traditional lawmaking process.
After The Seattle Times emailed all 147 lawmakers for comment in anticipation of a Friday vote, only a handful responded with their thoughts.
That all added up to what Toby Nixon, president of the Washington Coalition of Open Government called “an abomination.”
“The process just demonstrated incontrovertibly the utter contempt that legislators have for public participation in the public process,” said Nixon.
The bill also contains an “emergency” clause that means it would take effect immediately once it goes through the governor’s office.
This week, Gov. Jay Inslee, whose office routinely provides public records, said he didn’t know whether or not he would sign the measure.
Even as city, county and state government offices for decades have routinely released documents such as work calendars, emails and investigative reports, state lawmakers have claimed they are exempt from the law.
Though individual lawmakers have agitated over the years for greater transparency, the Legislature as an institution did not act on those calls.
But last year, several news organizations, including The Associated Press and The Seattle Times, challenged that exemption.
In January, a Thurston County judge ruled legislative leaders had violated the open-records act.
The Legislature has appealed, and the matter may wind up before the state Supreme Court. But lawmakers in the meantime decided not to chance things.
Enter SB 6617, which will make some legislative records public, such as lawmakers’ calendars and their email exchanges with registered lobbyists that are created after July 1.
It will keep private those records already in existence — many of which Thurston County Superior Court Judge Chris Lanese ruled are public records.
And to button up things even tighter, SB 6617 prevents people from challenging this records law in court.
The bill’s two sponsors, Senate Democratic Majority Leader Sharon Nelson and Republican Senate Minority Leader Mark Schoesler, are defendants in the court case.
Legislative leaders appear to have drafted the bill in a way that could stop the case’s progress, according to Hugh Spitzer, acting professor at the University of Washington School of Law.
That is because the bill has a clause making it retroactive, Spitzer said.
By making the law retroactive, “broadly speaking, a statute can reverse the effect of a court ruling …” said Spitzer, adding that a judge would have to decide.
An attorney for the media coalition said the group’s litigation would continue, and the effort to make the law retroactive would be part of the ongoing case.
“This is not a transparency bill,” said Michele Earl-Hubbard. “This is them choosing to provide a few records if they feel like it, when they feel like it, without enforcement power.”
If voters don’t like what the Legislature did Friday, Nixon said, someone might want to consider bringing a ballot initiative.
The few lawmakers willing to discuss how SB 6617 came about expressed discomfort at the process used to pass the bill.
Rep. Melanie Stambaugh, R-Puyallup, said in a statement that legislative leaders restricted debate, meaning lawmakers weren’t allowed to argue against the proposal on the House floor.
“This is wildly different from other bills where members are freely able to stand and speak,” wrote Stambaugh.
Stambaugh, who last year voluntarily released some of her emails, voted against the bill.
Nixon said he believes lawmakers were likely strong-armed by legislative leaders into approving the bill.
“This is the kind of bill where I would not be surprised that threats were made,” said Nixon.
Rep. Gerry Pollet, D-Seattle, was one of multiple lawmakers who earlier this year sponsored legislation to make some of the Legislature’s records public.
None of those proposals advanced.
Pollet supported SB 6617 and called it “a great step forward” from how the Legislature previously dealt with open records.
Asked why SB 6617 didn’t go through the regular lawmaking process, which includes committee hearings and public testimony, Pollet said he didn’t know.
“I introduced the bill that could have been heard and we could have had this in full public view and debate as it moved along,” he said. “And I just can’t answer the question.”
Sen. Reuven Carlyle, D-Seattle, said he doesn’t believe all of the Legislature’s records should be open. For example, lawmakers are right to impose some restrictions, such as on emails regarding legislation still being drafted.
But, “I would have liked to see an open and robust public dialogue of those legislative efforts,” said Carlyle, who called the bill’s journey into law “outside of my comfort zone.”
John Wonderlich, of the Washington, D.C.-based Sunlight Foundation, said legislatures often rush through bills that could limit public-records access.
“No one wants to be on the side of secrecy,” said Wonderlich, executive director of the open-government advocacy group.
“It flies in the face of what we expect from how government should function,” he added.
The lawmakers who have spoken in favor of SB 6617 called it a good start to transparency and more practical than the court ruling stating lawmakers’ individual offices are subject to the Public Records Act.
In an email, Sen. Jamie Pedersen, D-Seattle, noted that the bill would in July create “substantial new categories of records,” such as lawmakers’ calendars, and emails sent between legislators and lobbyists.
But it will leave a range of lawmaker emails confidential, including between lawmakers and constituents. And Sen. Sam Hunt, D-Olympia, said the bill doesn’t make public emails from lawmaker to lawmaker, or lawmaker to staff.
SB 6617 would make public the final versions of disciplinary reports, such as from investigations of sexual assault or harassment.
Those types of complaints, however, rarely get that far in the Legislature, which is grappling with an outdated and politically tinged process for handling harassment complaints.
Pedersen argued that the bill’s process for addressing disputes over open records through two legislative committees, rather than the courts, is appropriate.
“House Executive Rules and Senate F&O (Facilities and Operations) are well-positioned to administer this process and handle appeals quickly and efficiently,” wrote Pedersen, who chairs the Senate Law and Justice Committee and also is an attorney. “Their meetings are open to the public.”
But that provision “essentially renders it impossible for reporters to ever appeal secrecy by our elected officials,” according to a statement by the Western Washington chapter of the Society for Professional Journalists, which opposed the bill.
Since the Legislature is a more politically focused branch of government than state agencies and offices like that of the governor, said Sen. Christine Rolfes, D-Bainbridge Island, lawmakers need more protection.
Rolfes pointed to the increasing number of campaign-finance complaints filed in recent years — many of which have been deemed frivolous — through the Public Disclosure Commission and Attorney General’s Office.
Having lawmakers’ records completely open, with disputes over access settled through the court system, would allow opposing political interests to constantly attack lawmakers, Rolfes said in an interview.
A handful of lawmakers did not share such views.
Rep. Christine Kilduff, D-University Place, wrote in an email that the bill “wholly disrupts” state open-government laws.
“Succinctly put,” Kilduff wrote, “the bill is a body slam to open government and the accountability that our citizens expect and deserve.”