OLYMPIA — The Washington Supreme Court last week ruled that emails, text messages and other records held by state lawmakers are subject to public disclosure under the Public Records Act.
In a split decision last Thursday, the high court affirmed a Thurston County Superior Court ruling that sided with a media coalition led by the Associated Press. The group sued in September 2018, challenging the Washington Legislature’s assertion that lawmakers are excluded from stricter disclosure rules that apply to other elected officials and agencies. While seven of the nine justices agreed that the offices of individual lawmakers are subject to the Public Records Act, six of them ruled that the bicameral Legislature is only subject to a much more limited scope of records available through the House clerk and the secretary of the Senate.
HOW DID THE INDIVIDUAL JUSTICES RULE?
There were three opinions issued last week, none with a majority. In the lead opinion, four justices — Justices Susan Owens, Barbara Madsen, Charles Wiggins and Chief Justice Mary Fairhurst — found that while individual lawmakers are fully subject to the law, the administrative offices of the House and Senate have a more limited disclosure obligation. In a separate opinion, three justices — Justices Debra Stephens, Mary Yu and Charles Johnson — say that in addition to state lawmakers, the House and the Senate are subject to the same level of disclosure as the state lawmakers. In the third opinion, Justices Sheryl Gordon McCloud and Steven Gonzalez said that lawmakers are subject to the same limited disclosure that the House and Senate are.
WILL RECORDS BE RELEASED IMMEDIATELY?
That’s unclear. Both lawmakers and the media coalition can file motions for reconsideration with the Supreme Court to ask them to change the ruling within 20 days of the ruling. Once the court rules on that motion — or if nobody asks for reconsideration — the case is sent back to the trial court. Michele Earl-Hubbard, the attorney for the media coalition, said that lawmakers are on notice on what the Supreme Court said the law is and can start producing records now. If they don’t, she said, the media can ask the superior court judge to file an order to release the records. There will also likely be a motion for penalties, fees and other costs after records have been produced, Earl-Hubbard said.
WHAT KIND OF RECORDS ARE BEING SOUGHT?
The groups involved in the lawsuit have been previously denied documents ranging from lawmaker calendars, text messages related to legislative duties, reports of complaints of sexual harassment, and actions taken by the Senate and House against lawmakers because of interactions with staff. Besides AP, the plaintiffs 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, Tacoma News Inc. and the Seattle Times.
WHAT DOES IT MEAN THAT LAWMAKERS ARE FULLY SUBJECT TO THE LAW, BUT THE HOUSE AND SENATE ARE NOT?
While the court rules that work records produced by state lawmakers are subject to disclosure under the Public Records Act, staffers who work for the two chambers and the non-partisan committee staffers are not directly covered under the law under the ruling from six of the justices. This means the public will need to make requests to the offices of senators and representatives to obtain records. Records will be required to be produced if they are owned, used, retained or prepared by the office of a senator or representative, Earl-Hubbard said.
WHAT ARE LAWMAKERS SAYING IN RESPONSE TO THE RULING?
Legislative leaders say they are still reviewing the ruling but in written statements say are working toward being more transparent. Democratic House Speaker Laurie Jenkins wrote that while “we have already taken action toward better access to public records, we have more work to do” but said the House and Senate will work to implement the decision “to ensure transparency in government for Washingtonians.” Democratic Senate Majority Leader Andy Billig said that the Senate had previously already started setting up the infrastructure “to help respond to public records requests, store documents and take other measures to increase public access.” House Republican Leader J.T. Wilcox said in a written statement that he was glad “we finally have some clarity on this issue.” Rep. Gerry Pollett, D-Seattle, has said he will prepare a bill to clarify that the institutions are covered by the law as well and called for more public records staff to be hired, for lawmakers to start posting their calendars online and for the Legislature to release investigative reports on misconduct.