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

Legislators Thwart the State Sunshine Committee

By Kathy George

The number of exemptions to the state Public Records Act has ballooned, despite the committee’s mission to pare those back. From 2012 to 2022, the list of exemptions created by lawmakers increased more than 30%.

Washington’s Sunshine Committee started out with good intentions. In 2007, Rep. Lynn Kessler, then majority leader of the state House, wanted to rein in the burgeoning number of public disclosure exemptions. So she sponsored House Bill 1444 to create a committee of public records stakeholders, including representatives of the news media and state and local agencies, to review all exemptions and recommend whether to eliminate or modify them.

According to testimony at the time, there were at least 300 exemptions on the books, although nobody had done an official count. The legislation passed overwhelmingly with strong support from open government advocates, and the Sunshine Committee surged into action.

In its first year the Sunshine Committee met 10 times (although only four meetings were required) and reviewed 41 exemptions, sending to the Legislature a dozen unanimous recommendations to scale back government secrecy. In 2009, the first bill to carry out Sunshine Committee recommendations breezed through the Legislature.

Unfortunately, that initial burst of enthusiasm for “sunshine” was never matched. The Sunshine Committee slowed its pace of review, usually meeting only once a quarter and abandoning any pretense of reviewing “each” exemption as the law envisioned. The Legislature did not pass a second Sunshine Committee bill until 2015, six years after the first one. In fact, in the entire history of the Sunshine Committee, only four of its bills passed – while more than a dozen went nowhere.

Today, the Sunshine Committee law (codified as RCW 42.56.140: Public records exemptions accountability committee. (wa.gov)) remains an inauspicious part of the Public Records Act, promising more than could possibly be delivered by 14 appointed volunteers with no staff and sharply differing views about how much secrecy is too much. In 2023, the Sunshine Committee discussed disbanding itself amid mounting evidence that the Legislature was no longer interested in reducing disclosure exemptions.

In fact, the Legislature’s hunger for hiding public records has been the biggest barrier to accomplishing the heady goals of the Sunshine Committee law. While showing little enthusiasm for removing exemptions from disclosure, the Legislature has continued to create new ones.

From 2012 to 2022, the annual list of exemptions grew from 449 to 585. See the latest list here: Public Disclosure Exemptions 2022.pdf (agportal-s3 bucket.s3.amazonaws.com).

The scoresheet is grim.

The Legislature has removed only five disclosure exemptions at the Sunshine Committee’s urging since its inception. During the same period, the Legislature added more than 135 new exemptions. Here are just a few examples of information that has fallen out of public reach:

• Records relating to criminal terrorist acts
• Notices of crude oil transfers
• Cardiac stroke system performance data
• Hop grower lot numbers and lab results
• Identities of transit pass users

As The Seattle Times reported, Sunshine Committee members “haven’t been really encouraged by the Legislature,” according to Kessler, the former lawmaker who served on the Sunshine Committee from the outset. Kessler supported repealing the Sunshine Committee law, stating, “They seem to be even going more toward being exempted themselves. So I’m not sure they really believe in open government, at least not for themselves.”

The past 16 years have shown that, despite good intentions of those involved, efforts to bring sunshine to Washington state will be clouded by ever-burgeoning exemptions.

Kathy George is a Seattle attorney practicing public records law and a WashCOG board member. She was one of Gov. Inslee’s appointees to the Sunshine Committee from 2015 until she resigned in 2023.