NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, December 19th, 2019

Washington State Supreme Court: Public Records Act applies to legislators

In a vic­to­ry for open gov­ern­ment, trans­paren­cy, and account­abil­i­ty, the Wash­ing­ton State Supreme Court has ruled that indi­vid­ual leg­is­la­tors are sub­ject to the Pub­lic Records Act (PRA) and there­fore may not with­hold emails and doc­u­ments from jour­nal­ists, activists, or any oth­er mem­ber of the pub­lic.

“We hold that under the plain mean­ing of the PRA, indi­vid­ual leg­is­la­tors’ offices are ‘agen­cies’ sub­ject to the PRA’s gen­er­al pub­lic records dis­clo­sure man­date because they are includ­ed in the def­i­n­i­tion­al chain of ‘agency,’ as illu­mi­nat­ed by the close­ly relat­ed for­mer RCW 42.17A.005,” wrote Jus­tice Susan Owens in the court’s lead opin­ion, also signed by three oth­er jus­tices.

“We fur­ther hold that the sen­ate, the house, and the leg­is­la­ture are not ‘agen­cies’ because the insti­tu­tion­al leg­isla­tive bod­ies are not includ­ed in the def­i­n­i­tion­al chain of ‘agency,’ nor were they at any point. Accord­ing­ly, we affirm the tri­al court and remand for fur­ther pro­ceed­ings,” Owens’ opin­ion con­cludes.

Owens was joined by three col­leagues for the lead opin­ion (a plu­ral­i­ty of the Court): Mary Fairhurst, Char­lie Wig­gins, and Bar­bara Mad­sen.

The Court’s oth­er five jus­tices con­curred in part and dis­sent­ed in part.

“Because I believe the leg­is­la­ture is a state agency sub­ject to the PRA, and the statute del­e­gat­ing respon­si­bil­i­ty to the sec­re­tary and the chief clerk in admin­is­ter­ing the preser­va­tion of cer­tain class­es of leg­isla­tive records is nar­row, I can­not accept the lead opin­ion’s con­clu­sion that the leg­is­la­ture, includ­ing its bicam­er­al bod­ies and oth­er offices, are not sub­ject to the broad man­date for open gov­ern­ment,” wrote Jus­tice Debra Stephens.

“Instead, I would hold that the leg­is­la­ture as an insti­tu­tion, just like indi­vid­ual leg­isla­tive offices, is sub­ject to the PRA and must com­ply with its pro­vi­sions requir­ing dis­clo­sure of nonex­empt pub­lic records,” Stephens con­clud­ed.

Stephens’ con­cur­rence and dis­sent was signed by fel­low Asso­ciate Jus­tices Mary Yu and Charles John­son. (Stephens will in a few days become the Court’s next Chief Jus­tice, suc­ceed­ing Mary Fairhurst, who is retir­ing.)

Jus­tices Sheryl Gor­don McCloud and Steven Gon­za­lez reached a dif­fer­ent con­clu­sion. Accord­ing­ly, McCloud wrote a sep­a­rate con­cur­rence and dis­sent.

“The PRA requires every ‘agency’ to ‘make avail­able for pub­lic inspec­tion and copy­ing all pub­lic records.’ RCW 42.56.070(1). I agree with the lead opin­ion that the leg­is­la­ture is not such an ‘agency,’ ” McCloud wrote.

“It is the leg­isla­tive branch of gov­ern­ment, and it is sub­ject to the more lim­it­ed dis­clo­sure require­ments that the PRA places on that branch.”

“But I dis­agree with the lead opin­ion’s con­clu­sion that indi­vid­ual leg­is­la­tors con­sti­tute ‘agen­cies’ that are sub­ject to the broad­er dis­clo­sure require­ments of oth­er parts of the PRA. The lead opin­ion’s con­clu­sion on that point is based on a def­i­n­i­tion of ‘agency’ in a sep­a­rate statute in a dif­fer­ent chap­ter of the code.”

Read the lead opin­ion and the concurrences/dissents:

Supreme Court rul­ing on Pub­lic Records Act com­pli­ance

House Speak­er-des­ig­nate Lau­rie Jink­ins respond­ed to the rul­ing short­ly after its release by the Supreme Court, pledg­ing com­pli­ance.

“House Democ­rats believe in open and account­able gov­ern­ment,” Jink­ins said in a state­ment sent to NPI. “While we have already tak­en action toward bet­ter access to pub­lic records, we have more work to do. We are still review­ing the Court’s deci­sion to deter­mine its spe­cif­ic impacts, and will work with our col­leagues in the House and Sen­ate to move for­ward on imple­ment­ing the deci­sion to ensure trans­paren­cy in gov­ern­ment for Wash­ing­to­ni­ans.”

“We are still review­ing the court’s deci­sion, but as I’ve said through­out this process, I believe the Leg­is­la­ture should con­tin­ue to take steps toward greater trans­paren­cy,” said Sen­ate Major­i­ty Leader Andy Bil­lig in a state­ment.

“Long before this deci­sion came down, we start­ed estab­lish­ing an insti­tu­tion­al infra­struc­ture to help respond to pub­lic records requests, store doc­u­ments and take oth­er mea­sures to increase pub­lic access,” Bil­lig added.

“We will be work­ing with Sen­ate admin­is­tra­tion and leg­is­la­tors in the com­ing days and weeks to ensure com­pli­ance with this deci­sion.”

The case pit­ted Wash­ing­ton State’s media out­lets against its Leg­is­la­ture. The coali­tion of plain­tiffs assert­ed that the Leg­is­la­ture was improp­er­ly with­hold­ing records that are sub­ject to the Pub­lic Records Act. The Leg­is­la­ture argued that it was exempt from the Act. Thurston Coun­ty Supe­ri­or Court Judge Chris Lanese found oth­er­wise and ordered the Leg­is­la­ture to com­ply with the Act.

The Supreme Court has now affirmed that rul­ing.

The Leg­is­la­ture was rep­re­sent­ed in the case by Paci­fi­ca Law Group and for­mer Jus­tice Ger­ry Alexan­der. Allied Law Group rep­re­sent­ed the plain­tiffs, who became the respon­dents upon the fil­ing of the appeal. Ami­cus briefs were filed by a num­ber of orga­ni­za­tions, includ­ing the Amer­i­can Civ­il Lib­er­ties Union, Wash­ing­ton Coali­tion for Open Gov­ern­ment, and Reporters Com­mit­tee for Free­dom of the Press.

NPI sup­ports the Supreme Court’s rul­ing. As this post’s open­ing para­graph states, it’s a vic­to­ry for open gov­ern­ment, trans­paren­cy, and account­abil­i­ty.

We do think Wash­ing­to­ni­ans could ben­e­fit from an amend­ment to the Pub­lic Records Act that explic­it­ly declares that the Leg­is­la­ture and exec­u­tive depart­ment offices are sub­ject to it, and we sug­gest that the Leg­is­la­ture cre­ate and fund addi­tion­al staff posi­tions to empow­er our rep­re­sen­ta­tives and sen­a­tors to time­ly com­ply with their oblig­a­tions under the Act. Let there be sun­light!

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