Lawsuit against state is about protecting public’s right to know

  • Friday, September 15, 2017 1:08pm
  • Opinion

Recall earlier this year when the state Legislature passed its $43.7 billion operating budget and spending plan addressing the K-12 education funding crisis? That was a 12 percent increase over the previous budget, and included a major change to the state’s tax system.

These deals were negotiated behind closed doors and the resulting bills released for public review less than a day before they were to be adopted and signed by the governor.

Were this any other state office or local government, news organizations and citizens could have requested public records that led to creation of that legislation in advance of their passage.

Even if requested after adoption, the public records could provide insight into a process that is of undeniable interest to every state resident and taxpayer.

In fact, news organizations did seek those documents. Requests under the state Public Records Act were filed with all 147 state lawmakers. Requested were calendars and schedules showing who legislators met with and how they spent their workdays during the regular and special sessions between January and end of June.

Except for a handful of lawmakers who complied with the requests, most punted the response to House and Senate lawyers, who declined the requests by citing a 1995 state law they claimed exempts state legislators from the Public Records Act.

Several state news organizations, including the Whidbey News-Times’ parent company Sound Publishing, are suing the Legislature over its refusal to comply with public records requests.

A suit, filed Tuesday in Thurston County Superior Court challenges the exemption lawmakers cited to keep secret their daily schedules, emails, text messages and other documents related to their work.

As long as the state has had a Public Records Act, adopted through a citizens’ initiative in 1972 with 72 percent approval, news organizations and other advocates for open access to public records have pressed for lawmakers to include themselves under the law’s provisions.

While most states make similar exemptions for legislators, 12 states, including Oregon and Idaho, expect their lawmakers to comply with public records laws.

State lawmakers should be held to the same standards as any other public official or local government.

“How can we as citizens know that our elected officials are making good decisions if we don’t have access to the same information they are using to make those decisions?” asked Toby Nixon, president of the Washington Coalition of Open Government.

The lawsuit points to the conflict between the 1972 law and lawmakers’ interpretation of its 1995 revision of a 1971 definition of legislative records.

The lawsuit charges that the 1995 legislation “did not reverse the will of the people (in the ’72 initiative) and remove or narrow its reach to the very elected individuals with which that initiative was so deeply concerned.”

In the past, lawmakers claimed that complying with the Public Records Act would be complicated and costly.

That’s not an excuse they’ve allowed other public officials, agencies and governments to hide behind. Again, the courts that hear this case should hold legislators to the same standard.

Previously, the state Supreme Court appeared to side with a broad application of records act. The lawsuit cites case law as recent as 2015, as well as cases in 1978, 2007 and 2011, in which the Supreme Court held that the Public Records Act subjects “virtually any record related to the conduct of government” to public disclosure.

One case may complicate the argument.

The Supreme Court, citing the separation of powers among the state’s three branches, allowed in a 2013 decision that the governor holds “executive privilege” to exempt some documents.

Gov. Jay Inslee has not claimed the privilege and released emails and other documents when requested.

We’ll leave squaring those cases to the state’s high court.

If this argument advances to the state Supreme Court, justices should give the greatest weight to the will of the people and their desire for government transparency.

• Written by the editorial board at The Herald, a sister newspaper to the Whidbey News-Times.

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