"Legislative privilege" used to deny public records requests
Washington Coalition for Open Government press release: In recent months the Washington state Legislature has quietly rolled out a new legal strategy for circumventing the Public Records Act and keeping more of its documents away from public view.
Lawmakers and their staffs since last year have increasingly cited “legislative privilege” as a reason for denying requests for records, such as lawmakers’ correspondence.
Our attorneys have examined this claim, and we can say, unequivocally, that a “legislative privilege” allowing legislators to withhold documents does not exist in Washington state. The state Legislature’s claim is unsupported by state case law; it is unsupported by state statutes; it is unsupported by the state Constitution.
The Legislature’s claim of “legislative privilege” is only the latest move by lawmakers to operate outside of the state’s transparency laws.
· Lawmakers in 2018 quickly passed a bill that would have exempted the state Legislature from the Public Records Act. The ensuing public outcry prompted Gov. Jay Inslee to veto the legislation.
· In a historic ruling, the state Supreme Court in 2019 held that individual legislators are subject to the Public Records Act. The 7-2 opinion settled a long-running dispute between media outlets and lawmakers, who claimed the transparency law did not apply to them.
More recently, legislators and their staffs are citing a constitutional provision as reason to deny records requests under a supposed “legislative privilege.”
They cite Article II, Section 17 of the state Constitution, which says, “FREEDOM OF DEBATE. No member of the Legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”
Congress has a similar speech and debate clause, as do other states. Like its counterparts, Washington state’s speech and debate clause exists to keep lawmakers from getting sued or prosecuted for what they say in debate, thereby eliminating a tool for stifling their speech.
Washington state’s provision has nothing to do with lawmakers’ records. To claim it does is a tortured interpretation unsupported by law.
The Legislature rolled out its new disclosure policy quietly, not with a public announcement but with a series of records denials that is growing longer. We became aware of the change only by anecdote.
If lawmakers truly believe in their “legislative privilege” against transparency, they can always pass a statute, in public, with recorded votes. That would bring the Legislature’s shadow policy into the daylight, and the public would have a chance, at last, to examine and debate it.
We would oppose that, and we are confident the public would respond with a resounding "No!" Just as it did in 2018.
The Washington Coalition for Open Government is a nonpartisan, nonprofit organization founded in 2002. We are an independent, broad-based advocate for public records, open meetings and informed citizens.