In a shocking display of secrecy, stealth and a Big Brother’s twist of truth, the Washington Legislature introduced and then hastily approved a bill that exempts legislators from the state Open Public Records Act.
This informational coup was executed Friday with the precision of a well-trained militia. Just two days passed from public notice of the bill until its passage. No hearings were held.
In effect, Senate Bill 6617 buries past legislative secrets for all time, putting them down a memory hole. The retroactive measure is like concrete poured over illicit grave sites to conceal political or legislative bodies no one is supposed to find.
Gov. Jay Inslee should quickly veto the measure.
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The measure circumvents a judge’s important ruling last month in Thurston County Superior Court that favored open-government advocates in a lawsuit seeking emails, calendars and other public records from members of the House and Senate.
In the ruling, Judge Chris Lanese said legislators are subject to the records act just as any other public official. Attorney General Bob Ferguson agreed in a friend of court brief.
The bill — co-sponsored by Senate Majority Leader Sharon Nelson, D-Maury Island, and Senate Republican Leader Mark Schoesler of Ritzville — would bar future judicial review of legislative records disputes. SB 6617 sets up disclosure rules that parallel elements of the 45-year-old records act, but it lets lawmakers themselves act as final arbiters of what should be released.
Our legislators’ actions bring to mind writer George Orwell’s nightmarish depiction of a Big Brother government that insisted truth was whatever it said was true. In that spirit, many lawmakers are patting themselves on the back for what they claim is a step toward legislative transparency.
Don’t believe it.
The bill does allow release of legislators’ emails and letters with lobbyists, information from their calendars, and disciplinary reports that are finalized on or after July 1. But it buries documents created before that date. It also shields working documents from release after legislation is completed.
In effect, SB 6617 seals records clearly made available to the public by Judge Lanese.
Inslee, a Democrat, has until Thursday to decide whether to sign or veto all or part of the bill language. As a longtime advocate for government transparency who has refused to use an executive privilege to hide his office’s records, Inslee should feel confident in striking down the measure.
It does not matter that SB 6617 passed with veto-proof majorities — 41-7 in the Senate and 83-14 in the House.
Forcing a do-over by the Legislature would give the public more time to ask their lawmakers why this measure was needed. Some might rethink their positions and demand an open process.
An emergency clause attached to the measure prevents a citizen referendum from overturning it. (An initiative could be launched but requires twice the signatures as a referendum.) But lawmakers' inconvenience and difficulty administering a law do not amount to an emergency.
Legislators make an argument, already rejected in part by Lanese, that members of the Legislature should be treated as separate branch of government, not as “offices” or “agencies” subject to the disclosure law that applies to state agencies and local governments.
The legislation even notes that the state judiciary, which also is a separate branch of government, drew up its own rules for records disclosure. But Washington’s courts were deliberate. They took the public into account. Our Legislature did not.
SB 6617 protects “constituent” communications with legislators from disclosure on grounds that some voters bring highly sensitive, if not embarrassing information to them. But records law already has many exemptions to protect privacy.
The bill’s structure now encourages interest groups to communicate secretly with legislators by using advocacy staff or allies who are not formally registered with the state as lobbyists.
Four legislative districts overlap Thurston County: the 2nd, 20th, 22nd and 35th districts. All 12 lawmakers who represent those areas cast supporting the bill and cutting off disclosure.
Some, like Sen. Sam Hunt, D-Olympia, denied the measure exempts the Legislature, members and staff from the records act.
Mr. Orwell would have called that doublespeak. SB 6617 says explicitly in Section 102 that the records act does not apply to the Legislature.
As we’ve said before, disclosure of government records is a necessity in western-style democracies. The intent of Initiative 276, which voters passed almost 46 years ago, was pretty clear on that. Lawmakers have ducked and dodged for years — sometimes releasing documents, sometimes not. Now that they are losing in court, they are acting as defenders of open government.
Without greater transparency than SB 6617 provides, trust in government will be harmed.
Gov. Inslee, please give the 147 members of the Legislature another chance to get this right.