A bill exempting state lawmakers from the Public Records Acts was heard Thursday less than 24 hours after the proposal was made public, bypassing rules and procedures for legislation that would have normally delayed the process until the next legislative session.
The move comes in the wake of a lawsuit filed against lawmakers by the Associated Press and other media groups alleging that lawmakers were illegally refusing to turn over documents such as emails, working calendars and sexual harassment complaints made against elected officials. A superior court judge ruled against lawmakers last month, finding that they were subject to public records laws.
Lawmakers are currently appealing that ruling, an appeal which would be made practically moot by the proposed legislation.
Critics of the bill said at a work session Thursday said the legislature was setting itself apart from every other governing body in the state and would lead to less transparency. Though the measure would broadly remove state lawmakers from public records laws, the proposal defines some communications as still being subject to disclosure.
Those gathered to testify saw those exemptions as inadequate. One exemption, which would subject final disciplinary dispositions to disclosure, touched directly on the root of the lawsuit against lawmakers, which started with records requests for sexual harassment complaints filed against lawmakers.
“We sued the legislature over not having access to sexual harassment claims that have been made at the legislature and finding out about those processes. There has been a long history of those being badly handled here,” Rowland Thompson, of Allied Daily Newspapers, said.
Though the lawsuit went beyond that focus to try to hold lawmakers accountable to public records laws, lawmakers should make no mistake, Thompson said; the lawsuit was about shedding light on sexual harassment and how it is dealt with in Olympia.
The problem wouldn’t be solved by allowing for the disclosure of final dispositions, because sexual harassment complaints in the capitol rarely if ever reach that point, Thompson added.
The measure would also allow lawmakers to withhold communications with any constituent, defined in the bill as anyone, except a lobbyist who is registered with Washington state.
Thompson argued that corporations could “drive a truck” through that loophole.
“It can be a multinational corporation or an international union that maxes out to you in every one of your campaigns, that could be your constituent because they do not have a lobbyist who is registered in the state of Washington,” Thompson said.
During testimony, Rep. Sherry Appleton, D-Pouslbo, raised concerns that personal communications from voters who “need a shoulder to cry on” would be disclosed.
“How is that not a betrayal of trust?” Appleton asked.
Thompson said in response that those types of communications also go out to agencies ranging from city governments to the governor’s office.
“If you wish to exempt them for the legislature, there is a way to do this, but you have to deliberate over it and define it and not just pick a class of people that is liquid and can move around,” Thompson said.
Rather, Thompson said, it would be better to exempt documents based on the content, as is currently the case in public records laws.
Committees in the legislature would be the final arbiter of what records requests were exempt, and decisions from those bodies could not be reviewed by any venue, including the courts.
“It will be the only place in statute where a citizen is told that they cannot have redress through the courts. There is no check and balance here,” Thompson said.
Legislators overseeing the work session who talked afterwards with reporters indicated they had no input in the bill and were not aware that it was pending, including, Sen. Sam Hunt, D-Olympia, the chair of the work session and the Senate State Government Committee. Those who testified were as outraged by the speed with which the legislature pushed this bill forward as they were with the content of the proposal.
Legislation would normally be publicly heard in a policy committee, which would vote on the measure. The proposal would pass through at least one other committee before being put on a floor calendar. There would be several hearings on the bill on the floor of the legislative chamber it was introduced in before a vote would be held, only for the process to be repeated in the other chamber. Every step of the process involves the public and allows for amendments to be made, if a bill can even survive redundant scrutiny.
Instead, testimony was heard at a work session made up of members of the House and Senate state government committees. Anti-tax activist Tim Eyman argued at the work session that a bill put forward by citizens has to adhere to certain cut-off deadlines and that those rules were being ignored in this instance.
“It seems like the only reason [normal procedure] doesn’t apply to this bill is because this bill applies to you guys, and it doesn’t apply to anybody else,” Eyman said to legislators.
Arthur West, an open-government activist who recently won a court case against the Port of Tacoma after it resisted a records request from West, said that having a work session scheduled less than a day after the bill was dropped means that many citizens will only discover what’s happening after the fact.
“If this hearing took place tomorrow, there would be 20 publishers here, maybe more,” said Thompson.
Unlike other bills, the committees that heard public testimony have no voting power over the proposal. Instead, the measure has been put directly onto the floor calendar of the Senate, which will vote on the bill Friday with the House expected to vote the same day.
“This is a singular day,” Thompson said. “It’s breathtaking to have a bill like this show up this late in the session, on this most important issue, and for the legislature to step into an ongoing lawsuit at this moment, albeit one that is not going well for you.”
In a statement, Governor Inslee indicated that he does not support the measure but believes it has the super-majority support to override a veto.