Lawmakers are using ‘privilege’ more often than they claim to deny access, records show
.jpg "Flanked by Sen. Andy Billing (D-Spokane), House Speaker Laurie Jinkins (D-Tacoma) responds to a media question concerning the use of legislative privilege during the 2023 Legislative Preview held in the John A. Cherberg Building on the state Capitol campus in Olympia on Thursday, Jan. 5.")
Washington state lawmakers may be invoking legislative privilege more often than leadership claimed last week during a pre-legislative press conference.
Leading state lawmakers were given the opportunity Thursday to respond to claims that they have been using legislative privilege to deny access to public records.
Some denied the use of the exemption altogether, while others, such as Senate Minority Leader John Braun, R-Centralia, and Speaker of the House Laurie Jinkins, D-Tacoma, gave their interpretation of the laws some legislators are now using to shield themselves from public disclosure of certain records.
Since their comments, however, various organizations and individuals who have made public records requests have come forward to show instances where the exemption has been used by state lawmakers.
On Wednesday, McClatchy first reported about how legislative privilege is being invoked by legislators to deny release of public records and how the Washington Coalition for Open Government (WashCOG) believes the self-given exemption is the latest in the Legislature’s attempts to conceal public records.
On Thursday, media outlets at the legislative press conference were questioning leadership in both the House and Senate about those claims.
Lawmakers were first asked whether they believe in the concept of invoking legislative privilege. Each of the four leaders was given the opportunity to speak.
“It’s never once occurred to me that there must be some reason I could find that I shouldn’t turn this over if it is responsive to the request,” said House Minority Leader J.T. Wilcox, R-Yelm, who spoke first.
Braun told reporters that he believes legislative privilege is “a thing” that has been around “for a hundred years or more.”
The basis of Braun’s interpretation lies in the Washington State Constitution.
That provision says that “no member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate,” However, that constitutional right does not speak specifically to public records, such as emails and texts, held by legislators.
Braun also noted that he believes legislative privilege should be used “infrequently” and claimed that he does not personally “use it at all.” He added that he can count on one hand the number of times it has been used in the Senate Republican Caucus. The constitution, he said, does provide “some rights” and there is a fine line for how it should be used.
Senate Majority Leader Andy Billig, D-Spokane, told reporters that he agreed with Braun, and would leave it up to attorneys “to give the legal justification” for its use. Specifically, Billig said he believes in more transparency regarding the embattled Washington State Redistricting Commission and thinks legislative privilege shouldn’t be used on that issue “particularly.”
But he did not say if he believed in using the justification for other public records.
In fact, public records that were previously withheld under the claim of legislative privilege from Billig’s office were released to requestor Jamie Nixon, the former communications director for the Redistricting Commission, on Wednesday after McClatchy initially published the first report.
While Billig’s office did release public records pertaining to the Redistricting Commission that were previously withheld to Nixon, other communications from Billig’s office are still being withheld from him under the guise of legislative privilege.
Nixon received an email from the Senate public records department that day that said they had received questions from the media regarding the first denial of records sent to him so they again pulled up his request.
“Upon doing so we discovered that the review process was incomplete. We often pull documents into a file that may need to be redacted for things like attorney client privilege or legislative privilege and then we return to those for further review and potential redaction,” they said. “It appears that in this case we failed to do the final review at the time, and Senator Billig had not indicated that he intended to claim legislative privilege on the documents that were inadvertently withheld.”
Jinkins said she also believes legislative privilege is grounded in the constitution and that it is used “rarely.”
She said that individual legislators can assert legislative privilege, but that other legislators on the same communication chain can choose not to, so that record will still then become a public record.
Jinkins said legislative privilege exists for deliberation of the Legislature. She also told reporters she didn’t think she had used it “at all.”
But public records show that Jinkins’ office has in fact invoked legislative privilege multiple times in requests filed by Nixon. Nixon was seeking information pertaining to the failure of a legislative staff unionization bill in 2022. He said he simply wanted to know why the legislation was never brought to the floor, and why a watered-down version of the bill was instead passed. The records he got in return were either heavily redacted or exempted altogether.
As legislators were being questioned a second time about their interpretation of legislative privilege during the Thursday’s press conference, a fire alarm went off, ending the opportunity for all the lawmakers to respond.
Since Thursday, others have come forward to say they have received public records denials citing privilege.
Jason Mercier, government reform director for the Washington Policy Center, forwarded several emails to McClatchy where he was denied records using the legislative privilege exemption in regards to public records he sought about the capital gains tax.
Mercier told McClatchy that he doesn’t remember seeing legislative privilege used as an exemption before the past year.
In a press release from WashCOG sent out Jan. 4, the agency noted that “the Legislature rolled out its new disclosure policy quietly, not with a public announcement but with a series of records denials that is growing longer.”
Another group, WA Asians for Equality, posted screenshots on Twitter Saturday of 34 instances where legislative privilege had been invoked in a public records request seeking information from House Democrat Cindy Ryu about a Chinese American History Month bill that failed.
McClatchy sought clarification for the legislative privilege exemption from both the House and Senate public records offices before the initial article was published. Only the Senate public records office responded to a request for an explanation.
Randi Stratton, public records officer for the Washington State Senate, told McClatchy that “legislative privilege is a constitutional protection against judicially compelled disclosure of internal legislative records” that stems from the Washington State Constitution Speech and Debate Clause.
“It protects the internal deliberative processes of the Legislature by allowing legislators the freedom to discuss and explore policy options and protects legislators from interference by the executive and judicial branches,” Stratton said. “Records are exempt from mandatory disclosure under the PRA if another statute creates a disclosure exception. Based on the Supreme Court’s decision in Freedom Foundation v. Gregoire, and its recognition of a qualified executive communications privilege for gubernatorial deliberations, legislative privilege operates as an exception to the PRA’s disclosure obligations.”
Freedom Foundation v. Gregoire was a 2013 ruling by the Washington state Supreme Court that said governors of the state “could assert executive privilege to justify withholding documents that would otherwise be disclosable under the Public Records Act,” according to the American Civil Liberties Union. The law applies only to the executive branch, however.
Only one lawmaker so far has pledged not to use legislative privilege.
Rep. Gerry Pollet, D-Seattle, posted a Facebook status about the issue Sunday and said he would never claim legislative privilege for records.
“I remain the only legislator who publishes their calendar so constituents and reporters know who I meet with, without having to file public records requests,” said Pollet, who serves on the WashCOG board. “Sadly, you should expect that some legislators will claim privilege for who they meet with.”
