WA lawmakers work to keep public records from the public — again
- Written by Joseph O'Sullivan / Crosscut.com
The Washington Legislature's third attempt in a decades-long battle against transparency is — like the previous efforts — not going smoothly.
By Joseph O'Sullivan / Crosscut.com
This is the untold story about how the Washington Legislature has spent more than 15 years trying to consolidate its power in an effort to make sure it can keep secrets from the public.
The way Washington lawmakers are refusing to share the content of their own emails, texts and memos – despite a state law requiring their disclosure – is not a new concept. When questioned about their use of a legislative privilege – which has not yet been granted to them by the courts or in state law – House and Senate leaders go back in history to a centuries-old practice from England. Legislative privilege is a concept in at least 43 other states, they say, and it is grounded in the Washington Constitution’s Freedom of Debate clause.
But legislative leaders aren’t telling the whole story. Grab a beverage of your choosing and get comfortable. This is a complicated tale.
Legislative privilege – which has been cited in the past year to redact communications about the capital-gains tax, a collective bargaining proposal and a bill controversial among House Democrats to establish a new Chinese American history month – isn’t new for them. And it isn’t new for the Washington Supreme Court.
More than 15 years ago, the Legislature unsuccessfully tried to get the state Supreme Court’s blessing for a legislative privilege to shield documents from the public, according to a former attorney for the Washington Senate. That effort bore no fruit and afterward, lawmakers refused to release documents to the public for many years by claiming that a state transparency law didn’t apply to them – until the state Supreme Court in 2019 ruled otherwise.
The Legislature made an initial play to the Supreme Court in 2006, right around the time lawmakers passed two laws that they later erroneously claimed exempted themselves from the Washington Public Records Act. That’s the voter-approved law that requires documents to be made available to the public. Such sunlight allows the people and the press to better understand the actions and intent of the public servants voters send to Olympia.
As part of the Legislature’s 2006 gambit, researchers were hired, and an amicus brief was assembled in a case called Farm Bureau v. Gregoire, according to the attorney. In a trial court ruling, the Snohomish County Superior Court had recognized legislative privilege. That order put an entire branch of government within striking distance of expanding its own authority.
In a republic like the United States, getting recognized in a constitution is about as big as it gets. Compare this to the power of the Second Amendment in relationship with gun laws.
“And we hired two people to work on it,” said the former Senate counsel, who didn’t want to be named because they still do some Olympia-related work.
“We're like ‘Look, let's get somebody who has done this before,’” said the attorney, who shared a copy of the brief. “They were expert in it, and they helped us write an amicus brief.”
But the Supreme Court was not persuaded to weigh in, said the attorney: “They figured out a way to decide the case without” getting into the question of legislative privilege.
In an email, House Chief Clerk Bernard Dean confirmed a lower court ruling.
"In the past, the Legislature has not only invoked legislative privilege in open court to protect a subset of its records, but that court recognized the privilege and upheld its usage,” wrote Dean, who is the top nonpartisan official in that chamber.
This and other revelations – which have not been previously reported – are the product of a joint investigation by Crosscut and McClatchy, which owns The Tacoma News Tribune, The Olympian, The Bellingham Herald and the Tri-Cities Herald.
Early last month, McClatchy broke the story that lawmakers had been releasing redacted and blacked-out documents when responding to records requests, even though a 2019 state Supreme Court ruling declared lawmakers subject to the Public Records Act.
Since then, several lawmakers told Crosscut they didn’t authorize the redaction of records that were only partially released. House and Senate officials have said separately that they revised their internal policies in the face of questions about the requests.
Other lawmakers have authorized the release of their records, and a few have even spoken against the practice. In the face of questions and media reports, the Senate in recent weeks has released hundreds of pages of previously redacted records. In the House, hundreds of taxpayer-funded documents remain redacted.
Our investigation also revealed that the Legislature most recently began redacting some records citing legislative privilege in early 2021.
Additionally, legislative leaders also used the basis of legislative privilege to help inform their ill-fated 2018 attempt to exempt themselves from the Public Records Act, according to another former Senate counsel, after a judge ruled they were violating that law. Gov. Jay Inslee vetoed that bill after 19,000 Washingtonians wrote in protest.
This report is based on a review of nearly 3,000 pages of documents – some redacted, some unredacted – released in the past two months by the House and Senate after requests for records by Crosscut and McClatchy. It is based on court filings and broadcasts of public meetings, as well as interviews with lawmakers, two former Senate counsels, current legislative officials, attorneys and advocates for open government.
Need a refill of your beverage before we go deeper?
The Legislature now faces a new lawsuit, this time for blacking out documents. They hope the state Supreme Court will rule in their favor, for a boost in constitutional muscle. They want the court to give them the ability to redact emails, texts and memos related to the public’s business.
The stakes are high. State legislators draft the laws that decide what is a crime, like this year’s debate over drug-possession laws. They write firearms legislation and housing laws and create new taxes, as well as tax exemptions sought by special interests. This year, they’re writing a new two-year state budget in the ballpark of $70 billion. The spending document will decide how to direct that money toward schools, public lands, prisons, government assistance and the mental-health and foster-care systems. Nearly every decision creates winners or losers, and those decisions have a direct impact on the lives of Washingtonians.
As the latest secrecy drama plays out, there’s still another court case in the mix: the Supreme Court case they lost in 2019: Associated Press v. Wash. State Legislature.
The high justices sent the case back down to make sure the documents that legislative leaders unlawfully withheld from the press and public finally got released, among other things.
In an email last month, Secretary of the Senate Sarah Bannister, the top nonpartisan official in the chamber, wrote that the final set of responsive documents was provided more than 18 months ago, and “I am not aware if legislative privilege was taken” with any of them.
In an interview last week, Michele Earl-Hubbard, the attorney who represented the plaintiffs, said she doesn’t know if the Legislature ultimately made all the documents available: “I was disturbed at the lack of effort that they put in to find responsive records.”
“I know that we have not gotten what I would expect to be all the text messages and calendars” that she expected to be released, added Earl-Hubbard, who is principal at Allied Law Group.
“At some point in the future we will have a penalty phase in that case,” said Earl-Hubbard.
Earl-Hubbard did not express a high opinion of legislators’ latest practice for shielding documents: “To me it's a made-up fake privilege, it's not on legal grounds. It's ridiculous.”
Senate Majority Leader Andy Billig, D-Spokane, and House Speaker Laurie Jinkins, D-Tacoma, have said they will follow whatever courts decide this time, on legislative privilege.
It’s a changed landscape now, compared to the decade where lawmakers withheld their records by claiming to be exempt from the state transparency law.
Before the lawsuit first arrived in 2017, “you didn't go to legislative privilege, because the only response that anybody would get is, 'Actually, we're not even subject to the Public Records Act,’” according to Victoria Cantore, another former Senate counsel.
“So, like, ‘Pound sand,’ essentially,” said Cantore, who worked in that position from late 2017 through January 2022. “That was the company line for like a very long time."
‘Not yet recognized’
In January 2018, Thurston County Superior Court Judge Chris Lanese ruled that lawmakers were indeed subject to the Public Records Act, despite claiming otherwise. They had been sued by 10 news organizations – led by The Associated Press – who had sought records about what elected officials were doing. The requests among other things asked for lawmaker calendars, communications related to the landmark K-12 education funding order known as the McCleary decision, and any reports or investigations of sexual harassment at the Legislature.
The attorneys for the Legislature didn’t argue in that case that lawmakers had a legislative privilege, according to the state Supreme Court opinion. Instead, the case centered around whether lawmakers’ individual offices were agencies subject to the Public Records Act, or whether tweaks to the law made by the Legislature – including in 2005 and 2007 – essentially removed themselves from the voter-approved statute.
At that point, legislative attorneys realized they weren’t going to be able to withhold documents much longer, according to Cantore. The House and Senate started gearing up public records offices to finally start processing requests and making documents public. They also changed their approach on legislative privilege, Cantore said: They decided to try and pass a version of it into law.
Legislative lawyers still had documents about legislative privilege lying around from the 2000s, Cantore said, and the institution’s attorneys had long discussed the concept among themselves as a way to shield documents that lawmakers consider sensitive.
The result, Senate Bill 6617, is something Cantore describes as “my sore subject of life.”
The bill was lawmakers’ frantic, unsuccessful 2018 attempt to remove themselves from the Public Records Act. They were trying to make the exemption retroactive before the state Supreme Court could rule on their case. Two of the lawsuit’s defendants sponsored the bill. The legislation – which made a few limited pieces of communications public, like emails between lawmakers and lobbyists and barred judicial review – bypassed the traditional process of public hearings and committee votes.
It flew off the Senate floor by a large majority and no debate; it moved so quickly to the House that journalists covering the first vote had to run across the Capitol building, just in time to watch it speedily sail on through and over to Gov. Inslee’s desk.
At the Legislature, it can take years of discussions and public input to forge agreement on issues like homelessness, the mental-health system and school funding. But lawmakers passed SB 6617 within 48 hours of taking the proposal public.
Washingtonians caught on and 19,000 people contacted Gov. Jay Inslee’s office, urging him to veto the bill. The governor sided with the people and took a red pen to SB 6617.
“Much of what was intended to be protected in the way the bill was drafted was what counsel believes would be subject to legislative privilege anyway,” Cantore said. “Plus some extra stuff, like constituent and personal staff information, and things like that.”
Indeed, the records made secret in the bill include "records subject to the speech and debate clause of the state Constitution, including preliminary drafts, records pertaining to the deliberative process, and records in which policies are formulated," according to a legislative analysis of the bill.
In 2013, the state Supreme Court did grant an executive privilege that extends to Inslee as governor – but he has never invoked it.
After Inslee vetoed the bill, lawmakers, members of the media and others agreed to sit down and have a discussion about what public disclosure looks like at the Legislature.
In September 2018, that special task force held its first meeting, which took place while lawmakers and the news organizations awaited the final state Supreme Court ruling.
Six minutes into that first meeting, the co-chair, Democratic Rep. Larry Springer of Kirkland, introduced a presentation about legislative privilege and how it applies generally to legislatures and its deeper legal background through the centuries.
The presenter was Ohio State University Moritz College of Law Professor Steven F. Huefner, who authored an academic paper on legislative privilege and its use around the nation. Huefner’s name is also listed as an author in the 2006 amicus brief on legislative privilege that went before the state Supreme Court. The broad presentation about legislative privilege included about 41 seconds on a slide that mentioned the 2006 trial court case, according to meeting footage.
The idea to introduce legislative privilege in the task force meeting was by design of legislative lawyers, according to Cantore.
"When that bill blew up and when we were having the task force, one of the big things that we wanted to make sure, and this was like institutional counsel for both the Senate and the House, was that there was one day of that task force dedicated to discussing the concept of privilege," Cantore said.
Springer said nothing in the introduction about the 2006 attempt to secure legislative privilege before the Supreme Court, or any future use of legislative privilege. Nor did Springer mention that Huefner is listed as an author of the 2006 amicus brief.
"I remember the question of privilege coming up, but it was not addressed in any kind of definitive way" during the task force, Springer said, when asked about that meeting and the task force's work.
In an email to Crosscut and McClatchy, Huefner wondered why lawmakers didn’t argue that they had legislative privilege before the Supreme Court in their unsuccessful attempt to evade the Public Records Act.
"Did the legislature not raise the privilege issue then? If the state court were to conclude that the state constitution’s legislative privilege extends to documents, and not just to ‘words spoken in debate’ (which is the language of the Washington Constitution), that would trump whatever interpretation the court had previously put on the PRA," Huefner wrote in an email. "But why that issue wasn’t addressed in the 2019 case is a mystery; the legislature surely knew they could have raised the issue then."
The use of legislative privilege is not included in the task force’s final recommendations, according to that report.
In December 2019, the state Supreme Court ruled that lawmakers must follow the law, and the Legislature’s records offices got up and running over the next year or so. There were initially few requests for public records, according to Cantore. But legislative privilege was already on some minds.
“Even at that point, I remember having discussions where you were like, ‘You could make a cogent legal argument that privilege’ could apply to certain requests for records, Cantore said. But: “Well, we're not going to try to have this legal fight for something that happened a year ago.”
Feelings grew more urgent, she said, once lawmakers started getting more requests, including requests by advocacy groups or political interests.
"Where we're getting mid-stream requests in that policy process from people who want to know what's being talked about, that was always legislators' fears,” Cantore said. “I remember people saying things like, ‘What if I get a stakeholder from big tech’” requesting records, Cantore said.
Those fears extended to other legislation with high stakes, she added, like a proposal on rural broadband.
“That's when things started becoming more like, ‘We have to start using this or not,’” Cantore said.
Since legislative privilege isn’t sanctioned by the Washington Supreme Court or an appeals court, the Legislature had to explain the concept to those who might work on it – or invoke it. Two training presentations obtained by requests for records give insight into the rollout.
One 2022 training memo for legislative staffers is titled “Legislative Confidentiality” and is authored by state Deputy Solicitor General Jeffrey Even. It makes clear that legislative privilege “has not yet been recognized by the Washington Supreme Court.”
Meanwhile, in a 2022 training document for state representatives, House Counsel Ohad Lowy took a more sure-fire approach: “Legislators are not answerable to the judicial branch of government about their deliberative processes.”
“Legislative Privilege … operates as an exception to the PRA’s disclosure obligations,” Lowy wrote elsewhere, referring to the Public Records Act, which does not include an exemption for legislative records.
‘Boy, that needs improvement’
An early attempt to secure legislative privilege in 2006 got ignored by the high court. An attempt to pass a version of it into law in 2018 crumbled under a citizen revolt. The third attempt – the one right now – has not gotten off to a smooth start.
House leaders in January announced they walked back an auto-enroll program for redacting lawmakers’ documents after questions from the press and multiple lawmakers saying they never invoked a constitutional secrecy privilege.
That initial redaction policy – which required lawmakers to respond to an email within a time frame to object to it, or else their documents would be blacked out – is also memorialized in Lowy’s November 2022 training memo.
“The Privilege belongs to the member and can be waived,” Lowy wrote. “If member does not respond, records will be released as redacted.”
In the upper chamber, Billig, the Senate majority leader, has acknowledged that he asserted legislative privilege to black out other lawmakers’ messages. Republican legislative leaders have said they don’t believe the state constitution grants a right for a lawmaker to go and redact another legislator’s records.
In interviews, both Billig and Bannister, the secretary of the Senate, said that happened after the Senate received a new, novel type of request: a request for the group chat logs of Democratic lawmakers.
“It was the first time we've ever had that request, and that's how they handled it,” Bannister said in an interview earlier this month. “And now, we realize, boy, that needs improvement.”
As the Senate began using legislative privilege, some discussions about redacting documents were made via phone calls or in-office meetings, Bannister said. Therefore, in some cases, no records exist to verify who did or didn’t authorize the redaction.
Bannister said the Senate is refining its processes to make sure lawmakers know what is happening and that communications like email are used to track legislative privilege.
“I think that we haven't always been fair in our communications with our members, I'm not surprised there,” she said. “I wish we didn't have the confusion.”
This report was produced in collaboration with McClatchy, which owns The Tacoma News Tribune, The Olympian, The Bellingham Herald and The Tri-Cities Herald.
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