By changing it, bill would skirt court ruling that Legislature must follow state records law

Legislation proposed Thursday morning would define how the Public Records Act would apply to members of the Legislature after a 2018 court ruling that the state’s governing body is not exempt from the law.

The bill would not satisfy that ruling, according to the lawyer who represented 10 news organizations before a Thurston County Superior Court judge who ruled in January 2018 that the Legislature must comply with the state Public Records Act and had not been in compliance for years. Both sides appealed the decisions and litigation is still ongoing in the Washington Supreme Court.

Senate Bill 5784, sponsored by Senator Jamie Pedersen, D-Seattle, explicitly outlines exemptions that would apply to the Legislature.

“The people of our state value both open government and effective government. This bill attempts to strike a balance between those important principles,” Pedersen said in a press release Thursday.

The bill defines the term “legislative branch” as the Senate, House of Representatives, and the Legislative Ethics Board, joint committees and “any other agency that is subject to the direct control of the senate or house of representatives.”

The bill then adds the legislative branch throughout the bill, tackling the previous issue of defining the term “agency” used throughout the bill.

In the court ruling, the Legislature was not considered an agency, however individual legislators’ offices were considered agencies, making them subject to the Public Records Act.

Michele Earl-Hubbard of Allied Law Group is the media law attorney representing the news organizations, including the Associated Press, WNPA, and the Seattle Times, in the suit against the Legislature.

Earl-Hubbard said she “can’t see what’s left that the public would get to see” under the proposed bill. The proposal would differentiate legislators from other elected public officials so that legislators are not subject to the same laws, she said. Also, she said, it would continue to restrict information on misconduct allegations, which Earl-Hubbard says was at the heart of the media’s lawsuit.

“I was very disappointed when I read the bill,” said Earl-Hubbard. “This is being hyped as selected legislators claiming to have heard the message from the public last year.”

Toby Nixon, president of the Washington Coalition for Open Government said at least “they’re putting something on the table so we can start talking about the issues.” Last year the Legislature passed a bill exempting themselves on short notice and without discussion, said Nixon.

Pedersen’s proposal would make requests for all records of the legislature, a caucus, or a member invalid unless the request is on a particular topic.

The bill, in Section 111, outlines specific permanent exemptions that apply to the Legislature, which must be cited in denying a request. These exemptions include:

• investigative records that are generated before a determination of reasonable cause or dismissal of a complaint before the legislative ethics board or within the legislative branch;

• memoranda from staff or Legislators that contain legal, policy, or fiscal options, analyses, models, or analytical tools;

• records of internal caucus communications like leadership votes;

• notes taken by staff or legislators for use of the person taking the notes;

• negotiations between legislators or caucuses on bills, records of how a legislator intends to vote either in committee or in a chamber of the legislature;

• drafts of bills or amendments that were never introduced.

SB 5784 is scheduled for a hearing on Feb. 13, according to a press release from the Senate Democrats.

https://app.leg.wa.gov/billsummary?BillNumber=5784&Year=2019&Initiative=false