The following essays represent the analysis and viewpoints of their authors.

Finding 1: The Washington Legislature undermines the PRA.

Legislators Do Not Own Public Records, the People Do

By Mike Fancher

In Washington, legislative transparency is expected. Public records belong to the people. However, the state Legislature has repeatedly adopted restrictions on access to public records, while not supporting proposals to increase people’s access. Legislators repeatedly have sought to exempt themselves from the PRA and even now some assert there is a personal legislative privilege to exempt them from disclosing records. That assertion is wrong.

Open government is fundamental to the liberties we enjoy as a democratic society. Without the ability to inform ourselves, we can’t hold officials accountable and public trust in government suffers.

The people of Washington intended for legislative records to be public when they voted overwhelmingly in favor of a 1972 citizen initiative on open government. That intention was reinforced in the preamble to the state’s Public Records Act:

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“The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

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The Washington Coalition for Open Government (WashCOG) believes the people of Washington have a right to know who is seeking to influence our laws and the reasoning behind legislative actions. We have tried to work with legislators to expand access to legislative records, and have fought hard to protect the access people expect. But the list of exemptions created by lawmakers continues to grow dramatically.

The pressures against transparent government are relentless -- never more so than early in 2018 when the Washington State Legislature passed a bill declaring the Public Records Act does not apply to the Legislature, its members, employees, and agencies. The House and Senate overwhelmingly approved the bill just 48 hours after it was made public, without any open hearings or floor debate.

The Legislature had voted to exempt itself from the open records law governing every other legislative body in the state. How long would it have been before city councils and school boards would have demanded that the Legislature grant them the same secrecy it had given itself?

Fortunately, after public outcry including more than 20,000 calls and emails, Gov. Jay Inslee vetoed the bill. Then in 2019, the state Supreme Court definitively ruled that individual lawmakers had to comply with the Public Records Act.

One might have thought the legislators would relent. Not so.

Early in 2023, WashCOG learned that the Legislature was asserting “legislative privilege” to withhold or redact records. There had been no general public discussion or legislative declaration regarding the assertion. That is to say, a decision was made in private to assert that legislators have a personal privilege to exempt their records from disclosure. That, itself, was an act of bad faith by those involved.

Legislative leaders were all over the map when questioned about the so-called privilege. Ultimately, some leaders in the state House settled on an explanation that the “privilege” is granted individually to legislators and perhaps staff under Article II Section 17 of the state Constitution.

That assertion seemed an astounding reach. That clause protects “freedom of debate.” 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.

That seemed an untenable argument which was rejected even by many legislators. WashCOG said the House position was wrong legally and politically. It violated the spirit of Washington’s open government laws: The people have a right to know.

WashCOG, an independent, nonpartisan organization, and Jamie Nixon, an open government advocate who worked on Washington’s 2021 redistricting commission, jointly filed a lawsuit in Thurston County, accusing the Legislature of violating the Public Records Act. The lawsuit sought a court order declaring that there is no legislative privilege allowing public records to be withheld or redacted.

At the time of the filing, Nixon said, “Transparency at all levels of government is critically important so that people can understand exactly how their money’s being spent, who is spending it, in what ways. It’s our money. It’s our government.”

In October, subsequent to WashCOG’s filing, a Thurston County Superior Court judge ruled in favor of state lawmakers’ use of “legislative privilege” to withhold certain public records. The ruling was in a related case brought by Arthur West, an open government advocate.

Judge Mary Sue Wilson ruled that “legislative privilege” exists in Article 2, Section 17. The extent of the privilege will be decided at a later date.

Likewise in November, Judge Anne Egeler issued an order saying lawmakers may withhold “records revealing internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature.”

In response to the rulings, WashCOG Secretary George Erb told The Seattle Times the exemption has in the past been applied “haphazardly” and the definition has been vague. Erb worried the state was about to enter “a new era of lack of transparency,” especially in the Legislature.

“It is elected officials, who gather together to craft public policy in the people’s house,” Erb said. “Where’s the secrecy in that? The state Legislature is not a private country club.”

The WashCOG lawsuit and West’s will most likely be combined and brought before the Washington state Supreme Court.

Meanwhile, WashCOG has called on legislators to sign a pledge not to invoke “legislative privilege” in responding to Public Records Act requests. It says:

“In the interest of public transparency and open government, I instruct the records officer not to invoke a legislative privilege on my behalf when responding to public records requests.”

Signing the pledge will assure legislators’ constituents that Washington state government is operating openly, with the consent of the governed. WashCOG will post on its website at washcog.org which legislators have taken this pledge.

WashCOG believes Washington legislators need to accept that they do not own public records; the people do.

Mike Fancher has been president of the Washington Coalition for Open Government since January 2021. He joined the coalition board in 2006 and previously served as vice president and board chair. Fancher retired from the Seattle Times in 2008, after 20 years as executive editor.