Withheld documents may provide insight into the records WA lawmakers want to keep secret
Nearly two years after a request for public records from a state lawmaker was closed, Gregory Foster received a new batch of records from the Washington Legislature that he hadn’t seen before.
Foster, the founder of a group that closely watches cannabis policy making activity in Washington called Cannabis Observer, had first submitted the request in 2021 to Democratic Sen. Mark Mullet’s office about a piece of legislation related to social equity in the cannabis industry.
At the time, he didn’t get the records he was looking for, so he asked the Senate Public Records Office to close the request in October 2021. On July 20 of this year, the Senate turned over some records from Foster’s closed-out request.
“And then out of nowhere … we got additional records from that particular request from Senator Mullet’s office for records that he had been CC’d on with regards to this particular bill, which actually directly showed what we were interested in all along and had not been revealed by the records we initially got,” Foster told McClatchy and Crosscut in an interview.
The records Foster sought related to potential progressive policy amendments by Sen. Rebecca Saldaña, D-Seattle, and Mullet during the 2021 legislative session that would have made social equity retail licenses more mobile. Foster found the withdrawal of the amendments strange, so he submitted the public records request to gain more insight.
“The records on the 20th showed a direct exchange with one of the more prominent, or probably one of the most prominent, trade associations — their lobbyist, as well as the Liquor and Cannabis Board’s legislative director at the time,” he said.
Foster wasn’t the only one who received a batch of records on July 20 that had not been previously released by the Washington Senate. McClatchy, Crosscut, lawyers and other open government advocates all received new batches of records the same day. The requests had been for a variety of records, but the requests had all been previously closed out.
The records discrepancies and withholdings come at a time when state lawmakers have been under intense scrutiny after attempting to invoke the legally untested concept of legislative privilege to withhold documents from the public and the media.
A joint report from McClatchy and Crosscut in February found that the Legislature has spent more than 15 years attempting to consolidate its power and keep secrets from citizens by invoking the exemption.
Both outlets teamed up again for this report to understand the public records process, and to pinpoint what types of records lawmakers are trying to keep secret.
Why were cannabis policy records redacted?
Vicki Christophersen, executive director and lobbyist for the Washington Cannabusiness Association, was the lobbyist who Foster had seen discussing the legislation in message exchanges with Sen. Mullet.
“Our position on this has been very public and pretty transparent since the beginning,” Christophersen told McClatchy and Crosscut in an interview.
She said there is an ongoing debate about the mobility of new retail licenses that are issued to social equity applicants, and that the Cannabusiness Association didn’t want all of the licenses to go to one city. Ultimately the amendments by Saldaña and Mullet in 2021 were withdrawn because Christophersen believed there were issues that still needed to be discussed more, she said.
So why were the messages between Chrisophersen and Mullet previously withheld under legislative privilege?
In an interview, Mullet said it was his legislative assistant who authorized using legislative privilege on the set of redactions from 2021.
“My instructions since then have been just not requesting legislative privilege,” Mullet said.
What were the other records that were withheld?
Records from the offices of former state Sen. Sharon Brown, former Sen. Tim Sheldon, current Sen. Phil Fortunato, R-Auburn, current Sen. Shelly Short, R-Addy, and Senate Minority Leader John Braun, R-Centralia, were all included in the batch of records that were previously withheld and recently released.
Records from Brown’s office redacted, or blacked out, proposed amounts on a draft of the 2021 operating budget while Sheldon, Fortunato and Short had used the exemption to withhold a list of drafted amendments on legislation concerning offender scoring of drug offenses in 2021. Brown also had the list of redacted amendments from Republicans included in her records.
Other records gave more insight.
Sen. Braun’s office returned an email that was previously redacted regarding a drafted letter he hoped to have signed by all caucuses. The proposal included a suggested list of vetoes to propose to the governor for the supplemental budget in 2020.
Braun told McClatchy and Crosscut in an email that he had previously authorized the redactions because he was “advised by legal counsel that legislative privilege applied.” He said he learned that they had not yet been released when he was recently contacted by the Senate Public Records Officer.
“When these materials were brought to my attention, I immediately waived my claim,” Braun continued. “The documents have been provided to those who requested them, which includes several members of the press. I will continue to waive legislative privilege in the future, because I believe government should be open and transparent.”
Additionally, text messages were returned from the offices of Sen. Patty Kuderer, D-Bellevue, Sen. Bob Hasegawa, D-Seattle, Sen. Emily Randall, D-Bremerton, and former Sen. Reuven Carlyle.
Those text messages shed some light on how lawmakers and their counsel believe the privilege can be applied.
Under legislative privilege, specific bill numbers were blacked out, as was excitement over bills being voted out of a chamber, and even talk of interactions with other lawmakers regarding legislation.
“I need to contact members to make sure I have support,” Kuderer wrote in a text to her legislative assistant about amendments related to a data bill in 2021. The sentence was previously completely redacted under the exemption.
Randall’s texts also included redacted bill numbers as well as communications with an unspecified phone number.
“I will be a yes on both!” wrote the sender to Randall in a previously fully redacted message when asked if they would be voting yes on 2021 legislation to ban large-capacity magazines and prohibit weapons at the Capitol.
Randall liked the message, causing it to repeat the same message in a subsequent text. That too was redacted.
A lawsuit already has been filed against some of those lawmakers for “silently withholding” their public records. The state has already responded, denying those allegations.
In an email to McClatchy and Crosscut, Kuderer’s communications director said that “there is no comment at this time from Sen. Kuderer on pending litigation.”
McClatchy and Crosscut also reached out to Randall but were told that she is not “commenting on anything related to ongoing litigation.”
What happens now?
Following the initial reports of lawmakers using the legislative privilege exemption to withhold their records, Senate Majority Leader Andy Billig, D-Spokane, told reporters in February that all records withheld under the privilege in the Senate had been released.
The reason for the discrepancy between Billig’s remarks and the reality of the other undisclosed records is because it was based on the information he had received at the time from the Senate’s Public Records Office, Billig told McClatchy and Crosscut in an email.
“When they recently discovered new items, they took immediate steps to make those public,” Billig said. “The public records office deals with many requests each day and oversees literally hundreds of thousands of documents and it is clear that the office needs more support. The Secretary of the Senate is actively working to improve functions within the office, providing more support and leadership. To this end, the Secretary recently initiated the process of hiring a staff coordinator for the Public Records Office.”
Sarah Bannister, secretary of the Washington State Senate, told McClatchy and Crosscut in an interview that the public records office “really did their due diligence” to go through and produce all the documents that were initially supplied to news media and others regarding records withheld under legislative privilege. She noted that the public records office has to go through thousands of records sometimes in order to fulfill requests.
“So they’re human, things get missed,” Bannister added.
The late Sen. Doug Ericksen is the only Senate lawmaker with records still withheld under the exemption, she said. Moving forward there is a new process that flags records being withheld using legislative privilege, should any Senator decide to do so. Bannister said the refinement of the process came after they realized that legislative privilege was something that needed to be tracked better.
Still, the question remains whether or not lawmakers are entitled to even use the self-given exemption.
A Thurston County judge will address the issue next month in one of several lawsuits against the state for withholding public records. Regardless of that ruling, the Washington State Supreme Court will most likely provide the ultimate decision on whether the exemption exists.
“Members of the Washington State Legislature, like those of other states and members of Congress, enjoy a constitutionally protected privilege for their deliberations on legislative acts,” the state wrote in court documents for the lawsuit, in agreement with lawmakers who have claimed that legislative privilege is rooted in the state constitution.
The plaintiffs in that case, Jamie Nixon, an open government advocate, and the Washington Coalition for Open Government, a nonprofit open government group, are represented by Joan Mell, an attorney for III Branches Law in Fircrest.
Mell told McClatchy and Crosscut in an interview that the most recent release of previously undisclosed documents prove exactly why the Legislature “needs to add clarity, precision and definition to what it’s doing.”
“Because right now, it’s just completely arbitrary and capricious,” Mell said. “And it leaves requesters in a conundrum about whether or not their rights have been violated or whether or not there’s compliance with the (Public Records Act), because they’re just picking and choosing and doling it out when and if they want to for political purposes.”
The very essence of public records disclosure laws is to keep the politicization of the people’s business in check, she added. Mell believes the way the privilege has been used so far proves that the exemption isn’t truly rooted in the constitution because there are no definitive procedures or parameters.
The first thing Mell thought when she received the latest records, she said, was “why now and what were you trying to hide?”
“And what are you trying to tell me now that you’re willing to give it to me?... What didn’t you tell me? And what don’t I know? Because this isn’t the whole puzzle,” Mell said.
Mell said the government can’t just “willy nilly” do what it wants, when it wants, but she believes that is exactly what is happening now.
“The political motives behind it are somewhat individualized, somewhat party driven, or probably somewhat chambered. All probably having a keen access to power but for what power and for what ends?” Mell said. “I don’t really know other than what’s at issue is the people’s right to know, and that’s a big ticket item for the people of the state of Washington.”
This report was produced in collaboration with Crosscut, an independent and nonprofit news site.
This story was originally published August 17, 2023 at 5:00 AM.
