Panel says open-records law should apply to Legislature, too

OLYMPIA – It’s been nearly 40 years since Washington voters, seeking to make government more transparent, overwhelmingly passed a law requiring cities, counties and state agencies – with some exceptions – to open their meetings and files to the public.

Want to see how much everybody’s paid? You can. Want to see a mayor’s e-mails? They’re available. The travel receipts turned in by a city councilman on a trip? Help yourself.

Government officials who wrongly deny requests face fines of up to $100 a day. The small city of Mesa, north of the Tri Cities, was fined $246,000 for wrongly refusing records to a former mayor in a dispute that began in 2002. City leaders are considering bankruptcy, the Associated Press reported.

But the rules change, some lawmakers and their attorneys say, at the steps of the state Capitol. They argue that, much like their behind-closed-doors meetings in caucus, many of their records are shielded from disclosure by what some call “legislative privilege.”

Now, a committee created by the Legislature is wondering whether it’s time to abandon the double standard.

“Every other legislative body in the state of Washington is fully subject to the public records act,” Seattle city attorney Thomas Carr wrote recently. “There is no principled reason why the state Legislature should be exempt.”

Carr is the chairman of the state’s Sunshine Committee, which scrutinizes the more than 300 exemptions added to the 1972 Public Disclosure Act. The committee is considering recommending doing away with the legislative exemption.

“Open government is not easy,” Carr said. “But I do believe that it is for the best.”

State law allows Senate and House clerks to keep secret anything that’s not an “official action” of the House or Senate. That, Carr argues, means lawmakers could refuse to release their e-mails or letters.

Often, lawmakers turn over the records. But it’s not a clear-cut process. Earlier this year, it took nearly two months for reporters to get legislators’ e-mails about taxes, because lawmakers and their lawyers were trying to decide whether to deny the request. After weeks of delays, they released the records, saying they chose not to assert legislative privilege “at this time.”

And sometimes they say no. In 2005, open-government activist Jason Mercier asked for a copy of communications between lawmakers and the governor’s office over a state spending limit. Mercier was trying to show that budget writers were deliberately trying to skirt the limit. Much of his request was denied. Among the records he was refused: copies of his own e-mails.

“That kind of shows the extent of what’s being withheld under this privilege,” he said.

Some lawmakers, including at least two members of the Sunshine Committee, have concerns about changing things.

Sen. Adam Kline said the protection is not for the benefit of lawmakers. It’s for people who contact them.

“There’s an implicit assumption that we’re not going to use their name,” said Kline, D-Seattle. Someone writing to a lawmaker is “going to be sorely distressed” to find out that the message can be made public, he said.

Sen. Pam Roach says she releases documents, including e-mails, on request. But she predicted that some lawmakers would abandon their state computers and start using their own computers to try to avoid the possibility of disclosing e-mails.

“I don’t see this as a cure-all for some legislator that might want to hide something,” said Roach, R-Auburn.

Using a personal computer doesn’t shield the information, Carr said. He cited a case in which members of a local transportation board started doing official business on their private computers.

“A court ordered that every one of their personal computers should be searched for e-mails,” he said.

Roach also said she’s uncomfortable at the prospect of releasing e-mails in which a constituent is asking for help or calling for an investigation. That, she suggested, should be private.

Another committee member, attorney Ramsey Ramerman, disagreed.

“What the Legislature does, by definition, affects everyone in the state,” he said. “Every time a constituent asks you to do something, they’re asking you to do it for everybody.”

Carr first raised the issue two years ago, only to be asked by lawmakers to delay it.

“This legislative definition of ‘public record’ is tied to the Legislature’s understanding of its unique constitutional powers, rights and duties,” the state’s top four Democratic and Republican lawmakers wrote back. They said a then-pending court case could clarify things. But the state’s high court took a pass.

It’s true, Ramerman said, that the government does a lot of messy “mumbling.”

“All that mumbling needs to be done in public,” he said. “I don’t understand why the Legislature should get to mumble in private.”