Disappearing sunshine

Edmonds legislators join majority in voting to largely exempt themselves from public records
By Brian Soergel | Mar 01, 2018
Photo by: Taylor McAvoy

In record time, without public comment or even much discussion among themselves, local legislators serving Edmonds joined a large majority of like-minded lawmakers who decided they should remain largely exempt from the Public Records Act, which voters passed as a citizen initiative in 1972.

In votes with veto-proof wide margins, state legislators – including Reps. Strom Peterson, Ruth Kagi, Cindy Ryu and Lillian Ortiz-Self, as well as Sens. Marko Liias and Maralyn Chase – who all represent Edmonds in the 21st and 32nd districts – reaffirmed their commitment to shield themselves from public scrutiny from those who put them into office.

Other government agencies, such as city councils, county commissions, state agencies and school boards, are subject to the so-called “sunshine” of the Public Records Act.

Peterson, who lives in Edmonds, explained his reasoning for voting in favor of the exemption in a response to the Beacon.

"We have heard the concerns of open government advocates, editorial boards and our constituents,” he said, “and this legislation gives more access to our public records than ever before while protecting the privacy of constituents who share their personal stories and information with us.

"If you would like to know who I'm meeting with while I'm in Olympia, I'll happily give you that information. If you want to know what the lobbyists are asking me, I'm happy to share.

"If, however, you want to know the name of a domestic abuse victim who has reached out to my office for help, I think that information needs to be protected. This is a complicated issue, and we have made a positive step forward for greater transparency."

In fact, there are already provisions to protect constituency privacy in certain cases. The Public Records Act allows a privacy exemption in cases where the information "would be highly offensive to a reasonable person, and "is not of legitimate concern to the public."

According to the Washington Newspaper Publishers Association, the bill exempts disclosure of communications with "constituents," which is anyone who doesn't register as a lobbyist or employs someone who registers as a lobbyist, a government employee who is paid to be a lobbyist, an organization that does grassroots lobbying requiring registration, and an elected official or individuals who are acting on behalf of such people.

Result: If you don't register or employ someone who registers as a lobbyist, you can be considered a "constituent."

The WNPA reports that the bill invokes Article II, Section 17 of the state Constitution to close access to all documents, "including, but not limited to, preliminary drafts, notes, recommendations and internal legislative and interbranch communication in which opinions are expressed or policies formulated or recommended," for all time, unlike local governments, which disclose at the vote of finalization of an action.

The legislation, SB 6617, was passed through both the Senate and House in just three days, with no public hearing, as an “emergency” measure following a January court ruling that found the Legislature subject to state public disclosure laws.

The “emergency” means voters cannot bring forward a ballot referendum.

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

It means that 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.

Like Peterson, some lawmakers say the bill would actually open up more records.

“I voted for this bill as a step forward for transparency,” Liias said. “Like most bills in the Legislature, it reflects a compromise between many competing interests, and while I would have liked to see more disclosure, this bill reflects a dramatic step forward.

“As I receive public records requests in the future, I will view the new law as the minimum – not the maximum – for what I will disclose.”

The bill was introduced on Feb. 21 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 ruled that the Legislature is subject to state public disclosure laws.

But the Legislature has long maintained that it is an independent branch of government and not an “agency” – meaning it has made up its own rules on what to disclose. And that has not been much.

Last year, the Associated Press, the Washington Newspaper Publishers Association, the Seattle Times, Sound Publishing 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.

Lawyers for the Legislature promptly appealed the ruling to the state Supreme Court, then lawmakers set to work rewriting the public records law.

Sen. Chase, who lives in Edmonds, was one of numerous lawmakers who fired off identical statements to constituents after it became clear that Washington voters weren’t afraid to express their dismay at the actions of people they voted into office.

In her email, Chase did not make it clear that what she was releasing was not her own words, but those of Sen. Jamie Pedersen (D-Seattle).

The statement included the following: “This ruling overturns settled law from the last 45 years in this area and produces absurd and unworkable results. For example: I have one full-time staff person. If Judge Lanese’s opinion stood, I would have to appoint my own public records officer; adopt rules for public disclosure in my office through the Washington Administrative Code; and be available at least 30 hours a week year-round for public inspection of records.”

Toby Nixon is president of the Washington Coalition for Open Government.

“I think that both the process and the bill itself are abominations,” he said. “The process demonstrates the utter contempt that legislators hold for public participation in the legislative process. 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 Feb. 22 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.”

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.”

Josh Kelety of the WNPA Olympia News Bureau contributed to this report.



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