WA lawmakers say ‘legislative privilege’ lets them hide public records. They’re wrong | Opinion

You’ve got to give Washington lawmakers credit: they’re a creative bunch.

Faced with the state’s Public Records Act, and what it compels from our government and our elected officials — the timely release of documents, like emails and text messages, produced during the course of their work — they’ve repeatedly attempted to shirk their responsibility to citizens, using a host of flimsy excuses seemingly concocted from thin air.

In 2018, as many readers will recall, state legislators attempted to exempt themselves from the Public Records Act, passing the toxic legislation only 48 hours after it became public. Justifiably, people were irate. Angry phone calls flooded in and newspapers across the state sounded the alarm with front-page editorials. Governor Jay Inslee had little choice but to veto the bill.

A year earlier, the Associated Press filed a lawsuit after lawmakers denied the outlet valid public records, like calendar entries and sexual harassment reports. In 2019, the state Supreme Court ruled: reaffirming that individual lawmakers must comply with public records law.

Now, apparently undeterred, state lawmakers are at it again — with a more insidious but no less troubling attempt to circumvent disclosure.

They’re calling it “legislative privilege.”

We’ve got another name for it — one that’s frankly unfit for print.

As McClatchy’s Shauna Sowersby has reported, the latest drama came to light, at least in part, in response to a situation that was a debacle all on its own — the 2021 Washington State Redistricting Commission’s secretive redrawing of legislative and congressional districts without public deliberation. Recently, records requests related to that embarrassing legislative chapter were denied in the name of legislative privilege — though no such privilege exists under state law.

Subsequent reporting has highlighted other recent instances where legislative privilege has been used as an excuse to deny the release of public records, including in response to requests filed by Washington Asians For Equality, the Washington Policy Center’s Jason Mercier and journalist Austin Jenkins.

There may be other cases; we don’t yet know.

What we do know is that House and Senate lawmakers and their staffs — specifically on the Democrats’ side of the aisle, including Speaker of the House Laurie Jinkins, D-Tacoma — have recently cited the dubious exemption, and it’s a new development, a dodge assembled out of whole cloth.

So what’s the argument lawmakers and their attorneys are relying on to stiff-arm valid public records requests this time around? They’ve argued that “legislative privilege” protects the release of certain documents under a clause in the state Constitution enshrining the “freedom of debate.” Records denials have also cited court precedent that grants Washington’s executive branch the leeway to withhold certain documents otherwise disclosable under state law.

The truth? These are bogus readings that are cynical and insulting.

The freedom of debate gives lawmakers the ability to debate issues in public without fear of being held liable for their words in civil or criminal court. It doesn’t shield documents.

Under a 2013 ruling by the Washington state Supreme Court, the state’s executive branch can assert a privilege to withhold the release of certain records. No such privilege exists for the legislative branch.

“Basically it’s a new gambit to make the Legislature work outside of the realm of the Public Records Act,” George Erb, board secretary for the Washington Coalition for Open Government, told Sowersby.

“If legislative privilege sticks, the state Legislature would be able to sweep all manner of records under this particular legal blanket,” he added.

While the fight for public records and government transparency can feel like a wonky crusade carried out by prickly journalists and aggrieved activists, in reality the stakes are high — and the danger is exactly the one Erb describes.

When state lawmakers thumb their noses at the state constitution, suggesting that they’re not bound by the same public records laws that every other level of government adheres to — from school districts to local city councils and mayors — it undermines the bedrock of open government and the people of Washington’s faith. It also threatens Washingtonians’ right to know, see and read what’s happening in Olympia.

In other words, democracy itself is eroded, which is something the very same Democrats who have used legislative privilege as an excuse to deny the release of public records have repeatedly warned against in recent years.

Too bad their actions haven’t lived up to their rhetoric.

Sunshine is the best disinfectant. Lawmakers’ latest ploy to sidestep Washington’s Public Records Act is brazen cowardice.

The News Tribune Editorial Board is: Matt Driscoll, opinion editor; Stephanie Pedersen, TNT president and editor; Jim Walton, community representative; Amanda Figueroa, community representative, Kent Hojem, community representative.