McKenna, Inslee seek open records

Approaches differ: At this point, both say they would not follow Gregoire’s example

bshannon@theolympian.comJune 17, 2012 

Republican Rob McKenna and Democrat Jay Inslee both pledge to, if elected, open public access to more government records.

How each would fulfill that promise differs, except in one significant way: Both gubernatorial hopefuls said they would decline to claim a special exception to disclosure for the governor’s office.

Inslee and McKenna said they would not invoke the executive privilege that Gov. Chris Gregoire, a Democrat, has used to block the release of records on everything from the Alaskan Way Viaduct replacement to tribal gambling compacts, judicial appointments, even rules for marijuana.

The Freedom Foundation, a libertarian-oriented think tank that sued Gregoire over her use of privilege, said the privilege claim is an assertion of power that is not delineated in the Constitution or state law. The state Supreme Court is expected to take up the foundation’s appeal of a lower court’s ruling that favored the governor sometime in late fall or winter.

A new governor could be in office before the issue is settled.

“From what I know right now, I would not intend to exercise executive privilege unless or until it was delineated by the Legislature or a vote of the people,’’ Inslee said in a recent interview, adding that he did not know all the details of the legal case. “What we’re talking about is the public trust in the system, and that should be jealously guarded. … Close calls go in my book to public disclosure.’’

McKenna and his agency are defending Gregoire’s claim to privilege at the Supreme Court, but the attorney general said flatly that he would not claim privilege to shield the release of records as governor.

Instead, McKenna said he would rely on existing records law and any exemptions written into it. He declined to elaborate and said he could not talk about the Freedom Foundation case itself.

But McKenna did pledge that, if elected, he would go further than his predecessor. “I’ll be appointing people to agencies, and I’ll require greater transparency and compliance’’ as a condition of appointment to jobs, McKenna said. “The governor sets the tone for the entire state, all state agencies, when it comes to transparency. I think I’ve set a positive tone and a high bar for state agencies.’’


In the privilege case, Gregoire is asserting that her prerogative to protect documents is inherent in the constitutional guarantee of separation of powers and allows her advisers greater candor. A Thurston County judge agreed last year that she had the right.

Michael Reitz, the Freedom Foundation’s general counsel who is challenging Gregoire’s interpretation of the law, said news of the leading gubernatorial candidates’ position is encouraging.

“That’s significantly different than Gov. Gregoire’s position. Obviously, McKenna’s is more of an absolute statement. Inslee’s decision is interesting in that Gov. Gregoire has said the Legislature and the people should not weigh in (by initiative) because it could be seen as a violation of the separation of powers,’’ Reitz said.

The agreement on not invoking privilege – should the Supreme Court uphold its use – is one of the few similarities between two candidates who differ in terms of background, accomplishments and the way each might make government more transparent if elected.

McKenna has carefully burnished a record as a top advocate for open-records law at the state level, while Inslee cites numerous bills he voted for and instances where he took a stand for government transparency, disclosure or protecting whistle-blowers.

Both campaigns have made an issue out of the other’s transparency – or more to the point, lack of it. Inslee’s spokesman said McKenna might have spurred creation of a “Sunshine Committee” that put light on exemptions in the Public Records Act, but it has not stemmed the addition of new exemptions into the law.

And McKenna criticizes Inslee for the way he reported transfers of money from his federal congressional coffers into his state campaign account – making it hard to tell initially whose congressional donations were being transferred. Inslee said he was following the advice of the state Public Disclosure Commission, which admitted it initially gave bad advice.


Of the two, McKenna has the most visible record on disclosure at the state level. The former King County councilman took office as attorney general in January 2005 and, not long after, created the first public-records ombudsman’s position at the agency. He asked his new ombudsman to draw up model rules for how agencies should disclose records and to give other guidance to agencies and local governments.

McKenna also pushed for and won legislative approval for the Sunshine Committee that reviews and recommends changes to the 300-plus exemptions already in the state Public Records Act.

Critic State Sen. Adam Kline, a Seattle Democrat who quit the Sunshine Committee two weeks ago in protest, said the attorney general has used the committee “to pander” to newspaper publishers appointed to the panel, and said the Attorney General’s Office “has taken an extreme role in favor of transparency over privacy.”

McKenna backers take a different view. Toby Nixon, president of the Washington Coalition for Open Government and a McKenna supporter, said the key point in having a Sunshine Committee is that exemptions are now getting reviewed in a broader public context – rather than stuck into law where they lurk, blocking public access to records, for years.

McKenna also cites numerous legislative accomplishments, among them passage of a law that, he said, corrected a broad exemption in the records act that resulted after a state Supreme Court ruling in a Seattle Monorail case. The corrective legislation bars an agency from rejecting a records request simply because too many records were sought.

“I would say I have done more to promote transparency and strengthen state government open records practice than any other official,” McKenna said in an interview.

But McKenna also raised the eyebrows of open-government advocates with a law that lets agencies like the Department of Corrections go to court to block an inmate’s record requests if they are part of a pattern of abuse or harassment.

Open government advocates eventually dropped opposition and acknowledged there is a cost factor. But Rowland Thompson of Allied Daily Newspapers of Washington warned at the time of a slippery slope that could lead to local governments seeking the same tool to fight against records requests from citizen activists.

This year, Thompson said, local governments did just that, seeking to expand the law although they did not succeed.


Inslee, who resigned his 1st District seat in Congress earlier this year, calls himself an advocate for transparency, too. Inslee has left fewer footprints on the topic in the state than McKenna, but said he voted 18 times to increase transparency, require information be disclosed on lobbyists, and other such laws in the U.S. House.

“I have been a vigorous advocate for it at the federal level,” Inslee said. “I voted to put all federal emails in a searchable database. I called for federal contracts to be track-able in a format that explains what the contracts were for. … We’ve increased the disclosure of campaign contributions – for gifts.”

As governor, Inslee said he wants to find a stronger way to foster disclosure that does not have as much expense. “I want to look for ways (that) an ombudsman’s role is more effective, which may involve bringing it into the governor’s office,” Inslee said. “I have not concluded that but think it is worthy of consideration.’’

Inslee voted in 2002 for the McCain-Feingold campaign reform law and co-sponsored the more recent DISCLOSE Act reform on campaign donations, the Stealth Lobbyist Disclosure Act of 2007 and the STOCK Act barring insider trading by congressional members and staffers.

Inslee’s campaign released a long list of other legislation that he voted for – everything from a 1994 limit on accepting gifts, which passed the House, to a 2007 bill that strengthened the House member gifts ban and a failed 2011 bill that aimed to publish which members of Congress were in the federal-employee health care plan. He also voted to strengthen whistle-blower protections.

Leaders of the Sunlight Foundation, a nonpartisan advocacy group that monitors Congress for transparency, said their organization looks beyond a lawmaker’s championing of pro-transparency legislation. It wants to see members voluntarily posting their earmarks, personal finances or a calendar listing planned meetings with lobbyists.

A recent check of Inslee’s old congressional site, which underwent changes about the time he left Congress, indicated that Inslee didn’t take those extra steps. When asked specifically about why he didn’t post his list of earmark requests, Inslee said he always reported his requests to the House clerk as required.


Nixon, a former Republican state House member, hasn’t always seen eye-to-eye with McKenna on disclosure. In one case that drew Nixon’s condemnation in 2010, McKenna’s office tried to introduce records in a lawsuit that the Department of Energy had not included in its index of public records, and a judge initially said the agency and McKenna could not do that.

The Attorney General’s Office said it later prevailed, but Nixon’s complaint was it went against the agency’s own model rules.

Two years later, Nixon is still critical of the position, and so is Democratic state Rep. Gerry Pollet of Seattle, who serves on the Coalition for Open Government board with Nixon.

“Repeatedly we have seen instances where the ombudsman is essentially ignored in the decisions about whether or not to appeal a case and take a position against disclosure by the state,’’ Pollet said.

But Nixon is willing to look past that blemish on McKenna’s record. His reasoning: McKenna as attorney general has been “kind of bound to do what his clients, the agencies, want done. … As governor I think he would have a lot more discretion to use executive directives to tell the agencies to make all records available as much as possible. It’s a culture for the agencies.”

“With Congressman Inslee, I think we know a lot less about where he stands on open government,’’ Nixon said.

But Pollet, the executive director of Heart of America Northwest, which has fought for records on radioactive waste kept at the Hanford Nuclear Reservation, said Inslee has been a champion of transparency.

“I’m biased. I’ve worked with (Inslee) for 20 years on Hanford and energy issues. … I know he understands and gets the importance of protecting whistle-blowers,” Pollet said. “I have faith in him understanding this. … He gets it. He’s seen people stifled … and cover-ups.’’ 360-753-1688 @BradShannon2

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