Washington Supreme Court rules legislators must release public records

The controversial case resulted in three separate opinions — none of which, by itself, has a majority.

OLYMPIA — Individual legislators must release records under the state’s Public Records law, which has “a strongly worded mandate for broad disclosure,” a divided state Supreme Court said Thursday.

Individual lawmakers and their offices are subject to the law under the statute’s “plain meaning.” The secretary of the Senate and the clerk of the House also are subject to the law, but with narrower rules for public disclosure, a majority of the justices said.

“All conceivable categories of nonexempt legislative records” should either be disclosed by individual legislators or the secretary or clerk, a majority said.

The controversial case resulted in three separate opinions — none of which, by itself, has a majority.

Legislators and their offices clearly fall under the definition of an “agency” under the Public Records Act, or PRA, say four justices in the opinion written by Justice Susan Owens.

“The exemption of any government entity from the PRA’s general public records disclosure mandate constitutes a major political action,” Owens wrote, noting there’s no legislative history that such an exemption was made. “Individual legislators’ offices are obliged to disclose upon request all public records not otherwise exempted from public inspection.”

In 1995, legislators did assign certain records to the Senate secretary or House clerk, Owens noted, so those offices, as well as the Legislature as an entity, are covered by certain exemptions. Her opinion was signed by Chief Justice Mary Fairhurst and Justices Barbara Madsen and Charles Wiggins.

Justice Debra Stephens and two of her colleagues would have gone further, and not narrowed the exemption for the Legislature as a whole.

“The Public Disclosure Act as originally drafted plainly includes individual legislators; they are ‘public officials’ and their respective offices are ‘state offices,’” Stephens wrote.

Along with Justices Mary Yu and Charles Johnson, she argued the Legislature, the House and the Senate as institutions aren’t exempted from the act just by assigning certain records to the administrative offices because it didn’t expressly say that.

She also noted that in 2018, lawmakers tried to exempt themselves from releasing certain records, but after passing such a law, some urged Gov. Jay Inslee to veto the bill. He did, and that veto was not overridden.

“This most recent experience serves only to highlight that the Legislature has not explicitly exempted itself from the PRA,” she wrote.

Justice Sheryl McLeod, however, said lawmakers did essentially exempt themselves in 2007, when they amended the law to assign certain records to the Senate secretary and House clerk and excluded reports or correspondence in the possession of individual legislators

“Turning individual legislators into ‘agencies’ would frustrate this narrow definition that applies to the Legislature, making the entirety of legislators’ writings ‘public records’ subject to the PRA,” she wrote in an opinion signed by Justice Stephen Gonzalez.

That resulted in seven justices agreeing that records held by individual legislators were subject to the full effect of the PRA, but the Legislature, House and Senate have exemptions that give them more limited duties.

House Majority Leader Pat Sullivan, D-Covington, said legislative lawyers may need some time to study the decision and lawmakers will study how to set up a system to handle public records requests. Currently, the House has only one employee assigned to those requests.

“At this point, we’re looking at fully complying with the law,” he said.

But it’s unclear how long that will take, or how much it will cost.

Senate Majority Leader Andy Billig, D-Spokane, said the Senate has started setting up the process to respond to records requests and will work “in the coming days and weeks to ensure compliance with this decision.”

The lawsuit stems from a dispute between lawmakers and a coalition of the state’s news media over which legislative records have to be made public.

In 2017, Olympia-based reporters for the Associated Press, The Spokesman-Review and other news organizations filed requests for public records with all 147 legislators and House and Senate leadership. Among the documents they sought were calendars, schedules of meetings and investigations of misconduct by legislators or staff.

Except for a few individual legislators, the requests were denied, with administrative offices for the two chambers claiming the documents were exempt from the Public Records Act.

Other media outlets joined the dispute, and the news organizations sued, contending legislators were subject to the initiative passed by voters in 1972 that set up that law and arguing amendments passed since then do not exempt them.

Rather than use the state attorney general’s office, which usually handles lawsuits filed against the Legislature, lawmakers hired private firms, eventually paying some $350,000 out of their budget for legal fees.

In January 2018, Thurston County Superior Court Judge Chris Lanese ruled that while the administrative offices of the Legislature have exemptions through various amendments to the Public Records Act, individual legislators do not. They had to comply with the records requests like other elected or appointed government officials in Washington would. City and county elected officials who act in legislative capacities must release records to the public.

A few weeks later, lawmakers attempted to undercut Lanese’s decision with new legislation, suspending normal rules and quickly passing a bill with no hearing and little debate.

The public outcry and front-page editorials in many of the state’s newspapers prompted many legislators who initially voted for the bill to urge Inslee to veto it, as Stephens noted, and he did.

A special task force of legislators, open government advocates and media representatives failed to agree on firm recommendations later that year, and an attempt at a new bill died in a Senate committee in February.

The Supreme Court sent the case back to Lanese for further action, which could involve potential penalties and fees.