WashCOG fights misuse of ‘legislative privilege’
The Washington State Supreme Court ruled in 2019 that the offices of state legislators were “agencies” under the state Public Records Act, meaning that individual legislators were subject to the disclosure law. The ruling came after a lawsuit by most of the state’s media, a scramble by legislators to preempt the pending ruling and limit their liability under the PRA and an overwhelming lobbying effort by Washingtonians urging Gov. Jay Inslee to veto the legislative exemption.
Now, the Washington State House of Representatives is asserting a workaround, claiming that legislators have a previously unknown personal privilege to withhold from public disclosure the documents they use in their work for the people. The Washington Coalition for Open Government asserts that no such “legislative privilege” exists within the state’s Constitution or laws.
The House’s emerging new take on its responsibilities under the Public Records Act came to light recently in response to records requests from the public and news media. The House claims that the legislators’ emails, texts, What’s-App chats and other forms of intergovernmental and external communications fall not under the state’s Public Records Act, but instead under Article II Section 17 of the State Constitution.
That clause protects “freedom of debate” and the legal principle is recognized in other jurisdictions, including Congress. It reads:
SECTION 17 FREEDOM OF DEBATE. No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.
This is intended to encourage a robust debate of public issues in public; it has not been applied to documents — until recently. Under the House’s new expansive interpretation, legislators could withhold records of internal legislative discussion of proposed policies, positions, or legislation, including deliberations, recommendations, opinions, and advice. Several public records requests have been denied under this claimed exemption.
It’s a WashCOG priority to fight this misinterpretation of legislative privilege, and ensure the Washington State Legislature follows the Public Records Act as the State Supreme Court has ruled they must.
Resources and coverage
Press Release: Media backgrounder on state legislature’s new secrecy claim (Jan. 4, 2023)
The Seattle Times: WA lawmakers are keeping secrets from the people again
WA lawmakers must end dubious dodge on government secrecy - guest opinion by Mike Fancher, WashCOG president
