UPDATE 3/2/18: Governor Jay Inslee has vetoed the bill. “The public’s right to government information is one we hold dearly in Washington,” Inslee said. “Transparency is a cornerstone of a democratic government, and I’m very proud of my administration’s record on public disclosure. I believe legislators will find they can fulfill their duties while being fully transparent, just like state and local governments all across Washington.” In his announcement, Inslee said plaintiffs from a lawsuit brought by media “have agreed to join defendants in seeking a stay of proceedings in the trial court” — legislators said the case was part of their push to put a new records policy in place this session.
Original report: Olympia lawmakers are taking a lot of heat after voting last week to approve ESB 6617, a bill “concerning records disclosure obligations of the legislative branch” that many have said is an abuse of power insulating state senators and representatives from public scrutiny by exempting some records including communications with constituents and the location of meetings from public disclosure.
Both of Capitol Hill’s 43rd District representatives and the district’s state senator joined lawmakers across the state to pass the bill. What awful abuse of power did some of the most progressive state lawmakers in the nation commit in making their new policy?
Sen. Jamie Pedersen says that the vote has been “widely misunderstood” —
The bill does not merely codify the Legislature’s current interpretation of the Public Records Act. It also adds substantial new categories of records (including legislators’ calendars and letters and e-mails from lobbyists) that will be subject to public disclosure. These documents have never been public before. The Legislature will also create a new public records office and has funded several positions in the supplemental budget to staff it. I view these changes as a significant step toward transparency.
Writing for Washington State Labor Council, AFL-CIO news and advocacy site The Stand, Pedersen, a lawyer who currently serves as general counsel at construction firm McKinstry, explains that the state legislature’s move came in response to an untenable legal position:
Since the Public Records Act passed in 1972, the Legislature has consistently maintained that the Legislature is an independent branch of government, not an “agency.” We have, therefore, made our own rules about what documents are public. The judicial branch also takes the position that it is not subject to the Public Records Act and has adopted its own rules.
About a year ago, various media organizations sued, claiming that the Public Records Act should be interpreted to cover the Legislature. Just over four weeks ago, a Thurston County Superior Court judge ruled that although the Legislature is not an agency, individual legislators’ offices are agencies and are subject to the Public Records Act.
This ruling overturns settled law from the last 45 years in this area and produces absurd and unworkable results. For example: I have one full-time staff person. If Judge Chris Lanese’s opinion stood, I would have to appoint my own public records officer; adopt rules for public disclosure in my office through the Washington Administrative Code; and be available at least 30 hours a week year-round for public inspection of records.
“So the Legislature has done exactly what Attorney General Bob Ferguson said we should do,” Pedersen writes, “change the law to clarify how legislative records should be treated.”
For another take on the passage, here’s how the Associated Press is reporting the vote: “The measure retroactively removes the legislative branch from the state’s voter-approved Public Records Act so that lawmakers are able to attempt to shield records sought by a coalition of media groups, led by The Associated Press, who prevailed in court last month.” The new law would prohibit the release of the records sought by the coalition, the group says.
Pedersen explains that the bill, which will apply its exemptions to new and existing records, does protect “certain categories of documents, such as constituent correspondence and the location of meetings on our calendars” from disclosure. Other records including disciplinary reports against lawmakers would be subject to public requests.
“I think that these exceptions are balanced and appropriate,” Pedersen says. “I receive 10,000-12,000 e-mails each session from constituents. Many are form e-mails from advocacy groups. Should a marketing firm be allowed to do a records request to my office for everyone who has e-mailed me about gun safety?”
Pedersen says he expects Jay Inslee will allow the law to go into effect without the governor’s signature.
You can read the full essay here: Public Records Act expands disclosure, but protects privacy.
UPDATE 10:00 AM: CHS sent emails to the three 43rd District leaders who joined their legislature cohorts in approving the bill asking them to explain their vote. We immediately received a response from Pedersen with his positions. We have not yet received responses from Speaker Frank Chopp or Rep. Nicole Macri.
UPDATE 2/28/18: Here is the response Macri’s office is sending constituents. The first-term representative focuses on the rushed nature of the bill. “I am frustrated that the bill did not go through the regular committee process,” she writes. “My preference would have been to have more time to consider the pros and cons of this policy approach. The abbreviated process is related to an active lawsuit against the legislature, and how it relates to the legislative calendar.” She also adds a reminder that the rules could be updated in future legislation. “No single bill is the end of the story for any policy consideration, including this one,” she writes.
I appreciate you taking the time to reach out to me about HB 6617, which addresses public records. I, along with just about all of my colleagues in the House and Senate, voted to pass this bill.
HB 6617 has been broadly misunderstood in its intent and content. I hope you will take a moment to consider my thoughts on this issue. While I have serious concerns about the process that resulted in this bill coming to the floor so quickly, I felt it was important and urgent for the legislature to take a step toward greater transparency. I hope and expect to take further steps in broadening public disclosure in the future.
Before I get into the policy within the bill, I want to address the process by which this bill came very quickly to the floor of both chambers. I am frustrated that the bill did not go through the regular committee process. My preference would have been to have more time to consider the pros and cons of this policy approach. The abbreviated process is related to an active lawsuit against the legislature, and how it relates to the legislative calendar.
Nearly 130 years ago, the framers of our state constitution created a “part time” legislature, meaning we are only in session for part of the year, not for the full year as in the U.S. Congress. In Congress, representatives and senators may introduce, consider, and pass legislation at essentially any point in the calendar year.
In our state, representatives and senators only have the first few weeks of session to introduce legislation, which then must stay ahead of required deadlines in order to continue moving through the legislative process. Today, with our modern problems that require quick action, the legislature’s ability to respond to anything from immediate court orders to deadly school shootings, is hampered by this reality. For example, we had to wait months before the legislature could begin considering a remedy to the Atlantic salmon net pen escape since we were not in session in July when the incident happened. We are also considering firearms legislation outside of the normal deadline process because of the urgent need to address firearms violence, particularly in schools.
As we all learned in school, the legislature is one of three independent branches of government, it is not one hundred forty-seven independent state agencies. But, that is how Judge Lanese ruled. That change in interpretation is unworkable and inconsistent with our form of government. The next opportunity for the parties in the court case to meet with the judge is on March 9, after our legislative session ends.
By the time the Legislature’s counsel had drafted the bill and had it ready to introduce, we were already past the time when the bill could have been heard in the regular process. If the ruling had come this past fall, we could have done this differently.
I take our legislative deadlines very seriously, and rarely do bills that aren’t related to the budget move through the legislative process outside of those deadlines. This year and last year I had many pieces of legislation die, not because of the merits of the policy, but simply because of those deadlines. Unfortunately, in this instance we had to act immediately. In short, this is a good example of why the legislative process is deliberately slow so we don’t have to find ourselves in situations like this.
Now to the policy within the bill. I think the legislature should make public a significant portion of its records to the public. Government transparency is essential to a functioning democracy. I was compelled to support this legislation because it is a first step in the right direction to opening up legislators records to public disclosure.
Under current law before the passage of this bill, the legislature AND the Judiciary interpreted that they were essentially not subject to the public records act. That position was informed by two decades of advice from both Republican and Democratic Attorneys General. Those days are over, and the bill we passed shines an enormous amount of light on the inner workings of the legislature. Now, with passage of SB 6617, my calendar and emails, texts and voice mails to and from lobbyists will be subject to public disclosure. Those documents have never been public before, so to say we are hiding from disclosure is just not accurate. SB 6617 actually shines a light where there was none before.
For now, we will continue keeping constituent correspondence and sensitive constituent information private. A significant role of my office is to provide my constituents help related to challenging personal matters and problems related to state government. That requires us to take in a significant amount of private, personal information that should never be available to public disclosure. Some constituent information is already shielded from public view, but the public would not view my office as a safe space in which to seek help if they thought that any details of their circumstance could become public. Therefore, it is appropriate to make changes to the law only prospectively, no retroactively.
There are good reasons to consider including constituent correspondence in disclosures. However, this should only be done prospectively because people who are communicating with the legislature need to know what to expect regarding privacy when they reach out to us.
A final note about the legislative process. No single bill is the end of the story for any policy consideration, including this one. If changes are necessary to the bill we passed, we can absolutely give thoughtful consideration within our defined process. That is not uncommon, and I expect it to happen on this policy.
So, while I didn’t support the process that brought the bill up for a vote, and I don’t think this issue is settled, I do think this bill serves the interests of my constituents.
Thanks again for taking the time to share your concerns with me, and to consider my thoughts on this issue.
All my best,
State Representative, 43rd District, Seattle
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