Judge rules WA state lawmakers hold ‘privilege’ to withhold documents from public

A Thurston County judge ruled Friday that Washington state lawmakers have “legislative privilege” when choosing what documents to release under the state’s Public Records Act.

The ruling was a blow to public records advocates.

Superior Court Judge Anna Egeler sided with the state in granting elected state representatives and senators – along with other legislative employees – the right to withhold releasing records that pertain to the individuals with whom they are corresponding when drafting laws.

The Washington Coalition for Open Justice wrote in a memo that the implications of Friday’s hearing held “enormous” consequences in a case where lawmakers are trying to “hide more of their work behind a veil of secrecy.”

Last April, public records advocate Jamie Nixon and the Washington Coalition for Open Government filed suit against the State of Washington when they alleged lawmakers were secretly withholding documents.

Former Deputy Solicitor General and attorney Jeffrey Even represented the state at Friday’s court hearing. His main argument was that the Speech and Debate Clause as defined in the state constitution grants members of the Legislature the legal right to withhold records revealing “internal and nonpublic legislative deliberation.”

The state’s Speech and Debate Clause in Article 2, Section 17 of the constitution reads:

“No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

Even further argued that article of the constitution should supersede the state’s Public Records Act and give lawmakers sole discretion to withhold records from the public, including fiscal notes, session communications and interim emails.

“We simply have that hierarchy,” Even told the judge. “The Constitution is fundamental law. A statute’s going to be the application of that law and come below that law.”

Attorney Joan Mell of III Branches Law Firm represented plaintiffs Nixon and the Washington Coalition for Open Government. Mell argued the concept of legislative privilege was not in line with the Constitution and should not be used to “override” the Public Records Act, adding that the state’s argument would give lawmakers the power to withhold virtually all communications from the public.

“There may be a situation where an individual member would need to talk to a consultant or advisor in private,” Mell said. “… but that doesn’t extend to this privilege that (the state) has described. And it would need to be over a secret matter. The reality is, there’s not much secret going on in the Legislature. It’s intended not to be secret.”

Mell also argued the proposal that lawmakers have privilege to choose what information to release would create an imbalance of power.

After the court hearing, Mell told The Spokesman-Review and other media that she plans to appeal Friday’s ruling.