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:

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!