Shawn Vestal: Once again, lawmakers assert their privilege to ignore records laws

“Where is this ‘legislative privilege’ in the law? Nowhere. The Public Records Act does not grant such an exemption for withholding records.”

–Rep. Gerry Pollet, D-Seattle, in a recent social media post

It’s Groundhog Day in Olympia.

Again and again, the public in Washington wakes up to find that lawmakers, apparently oblivious to the drubbings they have received in court and from the public on this issue, have again found crafty ways to subvert the plain language and spirit of the Public Records Act.

This law, which holds that the written work of the government is owned by the public, applies to mayors and police chiefs and city council members and parks commissioners and dog catchers.

Yet legislators can’t quite accept that it applies to them.

Recently, we find they’re using the claim of “legislative privilege” to deny the release of public records – or to black them out to an outrageous degree. Lawmakers seem to have bestowed this privilege upon themselves, by twisting a section of the state constitution that protects them from civil liability or criminal prosecution “for words spoken in debate.”

Which is some grade-A legal taffy-pulling.

“Here we are again,” said George Erb, a West Side journalist and secretary of the Washington Coalition for Open Government, which has been ringing the alarm bells about this new dodge. “This is the third attempt in four or five years for the Legislature to try and write itself out of the open government laws.”

Recall that the Legislature had to be sued into compliance with the PRA just a few years back, when The Associated Press led a lawsuit over the refusal of lawmakers to release their calendars and emails.

While that case made its way to the Supreme Court, lawmakers tried to hurriedly cram through a law exempting themselves from the Public Records Act – an outrageous affront to public accountability that raised an outcry among the public and the press, and prompted a veto from Gov. Jay Inslee.

Then the Supreme Court made it clear in the case brought by news organizations: “under the plain meaning of the PRA” individual lawmakers are required to disclose their records to the public when asked.

Now this.

“I just look at the pattern of the state Legislature and the only conclusion I can come to is they don’t want to be fully transparent with the public,” Erb said.

The recent use of legislative privilege came to light first through the reporting of Shauna Sowersby of the Olympian. Among several instances is the case of the former communications director for the Redistricting Commission, Jamie Nixon. Nixon has requested reams of legislative communications and other documents related to redistricting and other matters, and he has been publicizing the rejections and redactions he’s received on Twitter.

Democratic leaders in both the House and Senate have rejected many of his requests, or redacted emails with such broad strokes that they are essentially useless.

One representative batch of records that Nixon has posted include heavily redacted emails among Rep. Marcus Riccelli, Rep. Laurie Jinkins and other lawmakers that are little but a series of large black boxes.

The Senate records office similarly withheld scads of redistricting records from Nixon – including communications involving Senate Majority Leader Andy Billig. When the matter became public, the redistricting-related documents were released, along with a statement from the Senate records office saying Billig had not intended to assert the privilege, and that they had been “inadvertently withheld.”

Other records involving Billig’s office that are unrelated to redistricting are still being withheld by the records office under the claim of legislative privilege, the Olympian reported.

Billig said in an interview that he had not asserted the privilege himself and that he would leave questions about the legality of the exemption to records office counsel, but he and other leaders said they believe it has value in rare instances.

Billig said that he’s become an “evangelist” for openness since he and his fellow lawmakers were “beaten over the head” by the response to their earlier attempts at evasion. He emphasized several steps toward greater openness that have taken place more recently, including the creation of a robust records staff and the elimination of title-only bills.

But he said there remains a need for legislators to have some ways of debating and discussing legislation among themselves as the sausage is being made.

This is frequently the crux of conflict over government records – the notion that deliberations should be kept private so people can speak freely.

But open-government laws are specifically and pointedly intended to do the opposite, no matter how uncomfortable lawmakers may find it. An accountable government is not one that delivers final outcomes and hides how we got there.

The supposed constitutional basis for legislative privilege – Article II, Section 17 – reads: “No member of the Legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

Does that say – or even hint – that lawmakers’ written communications should be kept secret at their own discretion? Does it address the question of public records at all?

It does not. Legislative leaders – and Democrats specifically – need to stop using this flimsy excuse to avoid their obligations to be transparent with the public.