Correction: This column incorrectly reported that Arthur West and WashCOG acted together in requesting records and challenging the state Legislature’s claim to withhold records based on “legislative privilege.” This is incorrect.
Arthur West acted independently of WashCOG with his records request and lawsuit. WashCOG filed later, separate requests for legislators’ records, and the coalition has not sued anyone over the matter.
Does the Washington State Legislature have a “legislative privilege” exemption to refuse to release records to the public under the Public Records Act? According to Attorney General Bob Ferguson and some in the state legislature, the answer is “yes”. (WA Attorney General’s Office Defends Use of ‘Legislative Privilege’ by State Lawmakers. MNT, 2/9/23)
The issue is over a January lawsuit filed by open government activist Arthur West. He originally requested records of how the state was redistricted after the 2020 U.S. Census. The legislature refused to release text messages and emails of those discussions, citing “legislative privilege”. West just won a $40,000 lawsuit over this public records request, but has not been given all the requested documents. Now he is suing to have the Court decide whether the constitution allows for legislative privilege.
The Washington Coalition for Open Government also filed similar requests, but has not sued for those records.
AG Ferguson argues that since the Washington State Supreme Court decided in the Washington Freedom Foundation v. Gregoire decision that governors “could assert executive privilege to justify withholding documents that would otherwise be disclosable under the Public Records Act.” Therefore, in Ferguson’s reasoning, it also allows the legislature the same privilege. Ironically, Governor Inslee “has vowed not to use the exemption to withhold public records.” The governor shows a level of integrity that neither the legislature nor the AG seem to exhibit.
Since it was the state legislature that created the Public Records Act, and since all other legislative bodies such as city councils, county councils, and other taxing districts have to obey the law — at great expense — why should the state legislature exempt itself? The adage, “What’s good for the goose is good for the gander” should be applied. Hypocrisy does not sit well in either the legislature or AG Ferguson’s arguments nor do such arguments breed trust in our government.
The other part of the constitution that has been cited is Article 2, section 17. The Washington State Constitution reads: “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” What West wants made public is not words uttered in an emotional debate on the floor of the legislative houses. Instead, he wants emails, and texts written in private.
One thing I learned as both a Civics and Government teacher, and as a past member of the Enumclaw Council, is that words matter. Debate is oral, texts and emails are written. This is a very weak argument to justify legislative privilege, if such a right even exists.
Giving the legislature this much power puts it on a slippery slope to weakening our democracy. If legislative privilege becomes set precedent, then legislative use will only increase with time. We have seen this problem on the federal level with all the documents being labeled “secret”, where in many cases the documents do not really deserve this classification. As we have seen over and over, secrecy encourages bribery, corruption and power grabs. The very purpose of the Public Records Act is to strengthen democracy.
This whole issue strikes me as a legislature only wanting rules of behavior for others, while considering itself above and superior to other state legislative bodies.
West and his organization stated that Ferguson’s siding with the legislature
“Is a new interpretation of an old provision in the state Constitution. A privilege allowing legislators to withhold records at will is unsupported by Washington state’s statues, case law and Constitution…. By citing privilege that was unrecognized and unused until last year when lawmakers quietly started claiming it without any public discussion.”
Something smells rotten in Olympia. Meanwhile our AG seems to be denying there is any odor at all. Are we being gaslighted — again?