The Washington Coalition for Open Government is urging state legislators to pledge they will not use a so-called “legislative privilege” to withhold information in legislative documents that otherwise would be available to the public through the state’s Public Records Act.
At issue is the Legislature’s move in recent years to withhold documents or black out portions of those released under the voter-approved Public Records Act, citing the “legislative privilege” exemption, which has never been approved by statute or articulated in the state constitution.
WashCOG is suing the Legislature over the practice, with the issue expected to be ultimately decided by the Washington Supreme Court.
A recent Crosscut/Elway poll found that 82% of Washington citizens oppose the practice.
“The people have a right to know what is happening when legislators adopt laws that affect us all,” said Mike Fancher, WashCOG president. “Lawmakers’ attempts to withhold information about how they do their job betrays the public good. Government transparency is a cornerstone of our democracy.”
The Legislature previously lost a court case in which a judge ruled that lawmakers are subject to the Public Records Act and must disclose their emails, appointment calendars, texts and other materials related to their legislative work.
Then, on a blindingly fast legislative timetable, lawmakers passed a bill to exempt themselves from the Public Records Act. The bill passed just 48 hours after it was announced, with no public hearings or floor debate. But after more than 19,000 Washingtonians contacted Gov. Jay Inslee to protest, the governor vetoed the bill. The Washington Supreme Court later declared the Legislature is subject to the Public Records Act.
The Legislature quietly started citing “legislative privilege” in withholding information sought by citizens under the Public Records Act as early as 2022. “Legislative privilege” has been used by legislators to hide their communications about topics as weighty as the capital gains tax and congressional redistricting, and as picayune as the wall paneling in a legislator’s acquaintance’s basement.
In other words, there’s no telling what legislators are hiding. The privilege has been invoked nearly 2,000 times.
Citing court rulings in other states, attorneys for the Legislature have argued that the privilege is “embedded in” Washington’s constitution. The constitution says, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”
The forerunner of the Public Records Act, the Public Disclosure Act, was passed in 1972 by a margin of 72%.
WashCOG sued the Legislature over the legislative privilege issue. The first ruling in the case, by Thurston County Superior Court Judge Anne Egeler, found that the legislative privilege allows lawmakers to withhold “records revealing internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature.” After a second phase of the Superior Court proceedings, it is widely expected the case will be appealed and ultimately require a decision by the Washington Supreme Court.
WashCOG last week emailed legislators asking them to personally pledge not to invoke the privilege, and to demonstrate that commitment by formally requesting that the House and Senate public records officers not invoke it on their behalf, going forward.
Those who take the pledge and make the notification to their public records officer will be formally honored on the WashCOG website for their commitment to open government.
WashCOG urges Washington residents to contact their two state senators and one state representative to urge them to take the WashCOG pledge not to invoke legislative privilege.
WashCOG is a nonpartisan, nonprofit organization founded in 2002. It is an independent, broad-based advocate for public records, open meetings and informed citizens.