Opinion: Government records belong to the public

Mark Harmsworth of the Washington Policy Center believes the legislature needs to pass clear, unambiguous legislation that clarifies the legislature is subject to the Public Records Act.

Until 2018, the Washington State Legislature leadership claimed it was exempt from many of the provisions of the Public Records Act

Mark Harmsworth
Washington Policy Center

The Washington Public Records Act (PRA), passed into State Law by citizens’ initiative in 1972, allows the public to inspect the records that elected officials create as part of doing the people’s business. That includes letters, emails, phone logs, meeting minutes and other documents submitted to the legislature and created by the elected representatives at all levels of government. There are some exemptions, notably records involving children, security information and other sensitive legal issues, but the vast majority of records have to be released to the public for review.

That should include the Washington State Legislature, but some legislators are claiming it doesn’t, despite the Washington Supreme Court ruling that the legislature is required to comply.

Until 2018, the Washington State Legislature leadership claimed it was exempt from many of the provisions of the PRA even though other government agencies were required to release their records to the public. During the 2018 legislative session, Senate Bill 6617 (SB 6617) was hastily passed by legislators which codified many of the exemptions into state law. The outcry from the public and media as a result of the passage of SB 6617 was understandable, and Governor Inslee was forced to veto the legislation. (This author incidentally, as a legislator in 2018, voted against SB 6617).

Now it appears the legislature has created a new ‘legislative privilege’ that enables an individual legislator to withhold records, theoretically covered by the state constitution Article II Section 17 which states ‘No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate’. To any regular person, Section 17 of the constitution was obviously intended to encourage public debate and avoid suppression of political opponents dissent through a lawsuit. It’s a stretch to conclude that public records are also exempt for fear of prosecution by a legislator’s opponents.

The Washington Coalition for Open Government is suing the State, and the case is making its way through the court system and will ultimately end up in the Washington Supreme Court. A judge in Thurston county has recently sided with the State on the privilege issue and the decision will be appealed.

While serving as a legislator I was asked many times for records and did not hesitate to release them to the requestor. This included a full record of all emails sent and received during my tenor to one requestor, appropriately redacted by the Legislative House Attorney for the aforementioned sensitive information. I would ask this legislature, why is it different now?

The legislature, to put this issue to bed, needs to pass clear, unambiguous legislation that clarifies the legislature is subject to the Public Records Act, just as all other municipalities and government agencies already are. If there are areas that legislators feel should be exempted from disclosure, that can be debated, but to exempt disclosure of everything the legislature does is not in the interests of the citizens of Washington.

Mark Harmsworth is the director of the Small Business Center at the Washington Policy Center.