AP, other media sue for info from Washington state lawmakers

A coalition of news outlets led by the AP is suing the Washington Legislature over its assertion that lawmakers aren't required to turn over calendars, text messages and other work materials.
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A coalition of news outlets led by the AP is suing the Washington Legislature over its assertion that lawmakers aren't required to turn over calendars, text messages and other work materials.
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These public servants think their records aren’t your business. We’re suing to change that

By Melissa Santos

msantos@thenewstribune.com

September 12, 2017 09:12 AM

The News Tribune and nine other news organizations are suing the Washington State Legislature, alleging that lawmakers are violating the state’s Public Records Act by withholding records tied to their legislative business.

The lawsuit, filed Tuesday in Thurston County Superior Court, claims state lawmakers are misinterpreting language in the state’s public-records laws to avoid turning over their calendars, emails, text messages and other materials connected to their work.

While the Public Records Act forces most government agencies to disclose those types of records, many state lawmakers consider themselves exempt from the requirements due to language they added to the law two decades ago.

The lawsuit filed by the news organizations challenges lawmakers’ assertion that they are immune from parts of the law.

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“The State Legislature, its staff, and the individual legislators taking this position are wrong,” the lawsuit states.

“...Hundreds of highly-important records of the Washington Legislature and elected legislators are being withheld from the public, depriving the media and public of information to which it is entitled and which is essential to informed governance.”

Hundreds of highly-important records of the Washington Legislature and elected legislators are being withheld from the public, depriving the media and public of information to which it is entitled ...

Excerpt from lawsuit filed Tuesday by 10 media organizations, including The News Tribune

Hunter Goodman, the secretary of the state Senate, said lawmakers and legislative staff were aware of the lawsuit, but offered no comment on it Tuesday.

“...We have consistently advised members and staff not to comment on pending litigation,” Goodman wrote in an email.

The claim alleges that those records are being withheld despite the 1972 law Washington voters approved to promote transparency in government. That law, Initiative 276, stated that, “full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.”

The initiative, which formed the backbone of the Public Records Act, further stated that Washington’s public disclosure laws should be “liberally construed” to promote “full access” to government documents.

“The will of the people was clearly stated when this initiative became law,” said David Zeeck, publisher of The News Tribune, in a statement. “And I think it's clear to the Legislature that the right thing to do is to disclose the information we are seeking. Though some legislative leaders disagree with our view, we think it's worth the time and expense for us to litigate the matter, and we are confident the court will agree with our position.”

In recent years, attorneys for the Legislature have declined to release most of lawmakers’ records, based on an interpretation of language inserted into the state’s Public Records Act in 1995. That amendment concerned a definition of legislative records and frequently is cited to argue that lawmakers’ emails, calendars and text messages — as well as complaints against legislators — are not public records that must be released.

Toby Nixon, the president of the Washington Coalition for Open Government and a former Republican legislator, said that the same transparency rules that apply to local government officials should apply to state lawmakers as well.

“The public has a right to know what the people in government are doing in their name, and that includes the legislative branch,” said Nixon, who currently serves as a member of the Kirkland City Council.

“County council members, city council members — they all have to turn over everything, unless there is some specifically crafted exemption,” he added. “None of them have a broad exemption for all of their correspondence, and they still get a lot of work done.”

The lawsuit is led by the Associated Press. Other news organizations that have joined the suit are public radio's Northwest News Network, KING-TV, KIRO 7, Allied Daily Newspapers of Washington, The Spokesman-Review, the Washington Newspaper Publishers Association, Sound Publishing and The Seattle Times.

The public has a right to know what the people in government are doing in their name, and that includes the legislative branch.

Toby Nixon, president of the Washington Coalition for Open Government

Earlier this year, the news organizations requested copies of all 147 lawmakers’ calendars documenting their official schedules from January through June, as well as their text messages that relate to their work in Olympia.

Lawyers for the House and Senate responded on behalf of most of the lawmakers, saying that the state’s definition of legislative records means most of their text messages and calendars are not public records.

Legislative attorneys used the same justification earlier this year to avoid providing The News Tribune with a copy of a letter disciplining state Rep. Jesse Young, R-Gig Harbor, as well as a copy of the calendar of Sen. Doug Ericksen. R-Ferndale, who had been splitting his time between Washington D.C., and Olympia.

“What you have requested does not fall under the definitions of a public record as that term is applied to the Senate, and therefore, the Senate does not have any public records responsive to your request,” a Senate attorney wrote in response to The News Tribune’s request for Ericksen’s calendar.

The News Tribune’s request for the past five years of complaints and disciplinary actions against state lawmakers met a similar fate. Legislative attorneys provided only records that already had been previously released, citing their interpretation of the law.

A few lawmakers responded quickly to the news organizations’ requests for their schedules, saying they thought the records should be made publicly available.

State Rep. Gerry Pollet, D-Seattle, provided his whole calendar.

“I believe that openness and disclosure regarding my public duties are vital for media and public accountability,” Pollet wrote in an email in June.

State Rep. Mike Pellicciotti, D-Federal Way, also provided a copy of his legislative calendar, as well as about six months’ worth of text messages between him and his legislative assistant.

A second batch of records requests filed in July by the media organizations’ attorney once again sought the calendars and text messages, as well as copies of staff complaints against lawmakers in the past five years.

Lawyers for the Legislature replied that although the information wasn’t considered part of the public record, they would release certain documents that had previously been reported on by the media, including the copy of the letter disciplining Young.

The news groups’ second round of requests also prompted Pellicciotti to release additional calendar information, and Rep. Kristine Reeves, D-Federal Way, to release her daily calendar.

The lawsuit seeks the release of the remaining records, as well as an award of attorney's’ fees. Beyond that, the plaintiffs are asking the court to impose penalties of $100 per page, per day for each day the records were withheld, as provided by state law.

Gov. Jay Inslee’s office has a different policy on releasing records to the public. While the Washington state Supreme Court ruled in 2013 that the governor can claim “executive privilege” as a reason to withhold some documents, Inslee hasn’t done during his five years in office.

Instead, the governor’s office releases emails, calendars and other documents when requested.

Tara Lee, a spokeswoman for Inslee, didn’t comment directly on the news organizations’ lawsuit, but wrote in an email that “the governor has stressed the importance of transparency.”

“That is why he chose not to invoke executive privilege,” Lee wrote. “The governor and his staff place a high priority on transparency and openness, crucial components of public service.”

 

Melissa Santos: 360-357-0209, @melissasantos1