After Public Fury in Washington State, Lawmakers Rethink Legislative Transparency

SEATTLE — In Washington state, the governor and officials in municipal and county governments are used to the idea that the documents and communications they produce every day on the public’s behalf belong to the public and are subject to the state’s open records laws. State legislators in Olympia, however, are not so used to the idea.

They drew intense public backlash over the last month for seeking to resist records transparency, losing a district court case against a coalition of news organizations and then, in response, attempting and failing to enact a law that would exempt them from key provisions of the state’s open records provisions.

The issue has moved off the front pages, but it’s far from over. Indeed, it may yet take a state Supreme Court ruling, a new good-faith round at passing open records legislation and, as attorney and longtime Washington state freedom of information champion Michele Earl-Hubbard told Route Fifty in an interview, years of practice to change the way many lawmakers in Olympia think about transparency.  

“I honestly thought that lawmakers this year, faced with a lawsuit, would do the right thing. Instead, they argued that they needed to be secret in order to protect the public. That didn’t fly,” she said. “That pissed people off.”

Earl-Hubbard represents the 10 news organizations who in September sued the legislative leaders for failing to comply with state Public Records Act requests for documents that included calendars, emails, text messages and, pointedly, any sexual harassment complaints and investigations.

State lawmakers argued they were exempt from the Public Records Act. At the end of January, a Thurston County judge disagreed. Lawmakers now plan to appeal the ruling to state’s high court, and both sides presently are preparing briefs to be submitted in the coming weeks.

Even though the case could drag on for more than a year, Earl-Hubbard said she thinks the Supreme Court may well see there’s some urgency to the case and speed up the process. She points to the fact that lawmakers even now are drawing up open-records bills to introduce when the 2019 legislative session launches in January.

But lawmakers—and perhaps their lawyers, too—may tread lightly on the topic in the future. The blowup at the end of the session this month came after legislative leaders brazenly rushed Senate Bill 6617 through the legislature over the course of 48 hours without public hearings or floor debate. In addition to exempting lawmakers from key parts of the state Public Records Act, the bill would have gone into effect immediately and prevented requestors who were denied access to records from seeking legal remedies. The move fueled scolding editorials from newspapers across the state, a deluge of angry messages from constituents and, in the end, a veto from Gov. Jay Inslee, a Democrat called the legislative process that birthed the bill “flawed.”

Earl-Hubbard was more colorful in her description. “It was truly one of the strangest things I’ve ever seen at the Capitol,” she said, laughing. She conceded that legislative leaders often take shortcuts on controversial bills—delaying a committee hearing time and again, burying it on a crowded calendar day, that kind of thing. “But there’s usually some public airing,” she said. “In this case, the leaders kept the bill secret from their own [caucus] members, and they reportedly strong-armed them to avoid all debate on the bill and to vote yes on it. The sneakiness, the strong-arming against basic First Amendment expression, that was different.”

The negative reaction on the part of the news organizations, which were already on high alert, was to be expected, she said, but the energized reaction of the public was a lesson to anyone watching events unfold.

“There was all this grassroots activity. People called, they wrote, they posted about it on their Nextdoor neighborhood lists, on Twitter and Facebook” she said. “It goes to show, that the sky doesn’t fall when officials act that way, that people can fight back and hold them accountable.”

For Earl-Hubbard, the events underlined the way experience with transparency can make a big difference in the way government officials approach their jobs. She said lawmakers who had come to the Capitol after working in local government were much more likely to be among the roughly 20 legislators who opposed the law.

“Local officials are used to the idea that their records are public, and they come to think of their work that way,” she said. “It is the longtimers at the Capitol who don’t think that way.”

That observation dovetails with something Earl-Hubbard has talked about in the past. “Each request for access is an educational opportunity,” she said in an online interview posted by the National Freedom of Information Coalition. In each case, “you as a citizen are reminding [officials] that they work for us, that these are our records, and that, in fact, public access is a good thing.” She said that, reminded often enough, officials internalize the message.

The open-records controversy at the Capitol has reportedly moved some legislators to rethink plans to run for reelection. Other lawmakers have taken the opposite tack, looking to head off controversy by, in effect, opening their robes.

Rep. Matt Manweller, a Republican from Ellensburg in central Washington and a political science professor, handed his state-issued tablet to the staff at his hometown Daily Record to peruse as they liked for several hours.   

“I think there was an understanding that we were trying to hide something,” Manweller said. “So I figured, the best way to confront that was head on, and say, ‘Here is everything. Here is my entire computer, my password. You have access to every email I sent or received, every calendar appointment I have ever taken. You have it all.’”