State lawmakers go into damage control with backlash over public records bill

Legislators frame the bill as a win for open government, while opponents hope for veto by Governor Jay Inslee.

By Josh Kelety, WNPA Olympia News Bureau

Following last week’s rapid-fire vote on a bill to exempt the legislature from state public records laws, lawmakers are going into damage control with public backlash mounting.

The bill, SB 6617, explicitly exempts lawmakers from the state’s Public Records Act, and applies immediately and retroactively – meaning that existing records going back to statehood would be off limits to disclosure requests. The legislation allows disclosure of lawmakers’ calendars and communications with registered lobbyists, but only documents created after July 1, 2018. The law shields them from disclosure information on sexual assault incidents in the legislature, which a group of news organizations had sought and sued for last year.

Introduced on February 21, the bill was rushed to a vote at break-neck speed, reaching the state Senate and House on February 23. It passed both chambers in 20 minutes with wide margins and no floor debate. By party breakdown, Democrats voted 68-8 or 88 percent in favor while Republicans voted 56-13, or 77 percent in favor. Two legislators were either absent or excused from the vote.

“In my 18 years in the Legislature, this is by far the fastest I’ve ever seen a bill pass, from beginning to end,” said senator Mark Miloscia (R-Federal Way) who was one of the seven state senators to vote against SB 6617. He called the bill’s quick turnaround a “world record in my book.”

The last-minute introduction of the law and the rush to enact it comes after a January ruling by Thurston County Superior Court Judge Chris Lanese, who determined that the legislature is subject to

public records laws.

The decree was prompted by a lawsuit brought by the Associated Press, the Washington Newspaper Publishers Association, and other regional papers against lawmakers who denied a records request that journalists made last year for lawmakers’ internal communications and information on incidents of sexual harassment.

Lawmakers have appealed the ruling to the state Supreme Court, where the litigation is ongoing.

Public outcry over the bill was immediate. On February 27, 13 daily newspapers across Washington state published front page editorials condemning the bill; over the weekend, Governor Jay Inslee had received over 500 emails from citizens criticizing the legislation, The Seattle Times reported. On February 26 alone, his office received 200 phone calls from people opposing the bill, according to the report.

Senator Jamie Pedersen (D- Seattle) who voted for SB 6617, said in a phone interview that he hasn’t received any constituent emails that support the bill.

Now, some lawmakers are going into damage control over the backlash. Since their vote on Friday, legislators who supported the bill began issuing press releases and statements on Facebook and other platforms defending their vote. They are framing the legislation as a win for both constituent privacy and government transparency.

Government transparency advocates and newspapers criticized the bill and the breakneck pace to push it into law as a cynical attempt by the elected officials to get around the judge’s January ruling.

“I think that both the process and the bill itself are abominations. The process demonstrates the utter contempt that legislators hold for public participation in the legislative process,” said Toby Nixon, president of the Washington Coalition for Open Government. “The bill has so many things wrong with it.”

Michele Earl-Hubbard, the attorney representing the news organizations in the ongoing court case, said before the vote that “there will absolutely be litigation” if the legislature passed SB 6617.

“The state legislature thinks they need something special and that they need to operate in secrecy,” she said. “It’s really despicable what they’re doing.”

Six members of the public were briefly allowed to testify on the bill during a “work session” with members of the Senate and House committees concerning state government the day before legislators voted it into law. The testimony was unanimously opposed to the legislation.

“You’re running the risk of demonstrating to the people that you’re setting up an imperial legislature that is not subject to the people,” said David Zeeck, publisher of The Olympian and The Tacoma News Tribune.

“You don’t shove through something this important with that short of a time frame, no public hearing, no committee meetings on it,” said Gordon Padget, a Vancouver resident who drove up to Olympia to attend the work session. “Do you think the people are going to trust you as state legislators if you enact this?”

Prior to Friday’s floor vote in the Senate, the legislation’s two primary sponsors, Senate majority leader Sharon Nelson (D-Maury Island) and Senate minority leader Mark Schoesler (R-Ritzville) framed the legislation as boosting government transparency.

“This is a step forward in transparency,” Nelson said.

District 42 legislators, senator Doug Ericksen (R-Ferndale) and representatives Luanne Van Werven (R-Ferndale) and Vincent Buys  (R-Lynden) all voted in favor of the legislation.

Asked why she believed state representatives should be exempt from the public disclosure act, Van Werven responded by writing, “As a legislative appointee to the Sunshine Committee, I am committed to open and transparent government […] For me this issue came down to constituent and whistleblower privacy. Under Judge Lanese’s ruling, the media and public could have had access to all communications between me and my constituents and I believe that correspondence should be private.”

Neither Ericksen or Buys had responded to a request for comment by press time.

Representative Matt Shea, (R-Spokane Valley) said the bill is a response to the January court order and that the legislature is not subject to public disclosure laws because it is not a state agency. “We’re the ones that have oversight over state agencies. We are a separate branch of government and this bill restores, very clearly, the separation of powers,” he said.

In a February 23 statement, senator Manka Dhingra (D-Kirkland) said that the bill balances the privacy of constituents with transparency. “I am happy that we are moving in the direction of more transparency,” she wrote.

The same day, representative Sharon Wylie (D-Vancouver) published a statement on her website in which she slammed media coverage on the issue: “Media reports that this claim is a way of avoiding transparency and bypassing a court decision are incorrect,” she wrote.

Representative Gael Tarleton, (D-Ballard) argued in a February 25 blog post that while the process by which the bill passed was “flawed,” she thought it was necessary to counteract Judge Lanese’s January ruling. She wrote that the ruling would impose “obscene” financial costs to legislators to administer records requests and “paralyze the ability of legislators to properly represent their constituents.”

Additionally, several House members circulated a defense of the bill authored by senator Pedersen, with largely word for word similarity. Pedersen said that he had shared his message – which was originally published in The Stand – with the Senate Democrats communications staff, who then passed it over to House Democrats’ staffers, who distributed it among their members. In the essay, Pedersen said that the bill has been “widely misunderstood.”

“There’s no real attempt to have any balance in the reporting,” said Pedersen of media coverage on the issue in a phone interview. He also characterized the numerous newspaper editorials as an “unprecedented use of resources by the plaintiffs in the lawsuit to try and stir up opposition to the bill.”

The press and open government advocates were quick to fact-check lawmakers. Seattle Times editorial board member Melissa Santos argued on Twitter on February 26 that health information and many personal details are already exempt from disclosure under the Public Records Act, contrasting with claims from lawmakers that SB 6617 is needed to protect constituent privacy.

Sean Robinson, a reporter for the Tacoma News Tribune, slammed legislators’ characterizations of both the bill and media coverage of it on Twitter: “The media covered it truthfully. You guys ran a deceitful, abusive process that prevented scrutiny, cut out public hearings and denied your own members the chance to speak in dissent. Own it and be honest,” he wrote on February 24.

“For the most part, what we’re hearing the legislators saying is not true,” said Michele Earl-Hubbard, the attorney representing the media organizations in the lawsuit.

In response to criticisms of the bill’s rushed passage, Pedersen claimed in his essay that the bill needed to be pushed through at the end of the legislative session because Judge Lanese’s ruling came in late January and he “refused” to suspend his order until the case had gone through the appeals process.

“If the ruling had come in October, we could have done this differently,” he wrote.

Earl-Hubbard countered that lawmakers never requested a stay from Judge Lanese. “It’s not true that they asked him to stay his order and he turned them down. They never asked him,” she said.

Following the January ruling, attorneys representing the legislators filed for a stay with the state Supreme Court, but the court has yet to rule on the request, according to Earl-Hubbard.

Senator Miloscia said that the bill was rushed to passage within three days due to its strong support among lawmakers and the likelihood that it would garner public opposition. “When there is complete and utter agreement among a vast number of legislators on a bill that people will get upset over, those bills go extremely fast, as fast you can make it, and that’s exactly what happened,” he said.

Miloscia said that the bill “basically says that the politicians decide what the people have the right to know,” and that legislators “knew exactly what they were voting for.”

The bill currently sits before Governor Inslee, who could choose to sign the bill, let it pass without his signature, or veto it. He has until Thursday, March 1, to make a decision.

During a February 27 appearance on MSNBC, Inslee said that, while he thinks the bill is a “bad idea,” he can’t veto the legislation because lawmakers passed the bill with a “veto-proof majority.” He added that he doesn’t “have control over” over the legislation. By vetoing the bill, Inslee would send the bill back to the House and Senate to be voted on once again, this time under the harsh glare of public scrutiny.

When asked if the governor would veto the legislation, Inslee spokesperson Tara Lee wrote in an email that their office is “reviewing it.” The governor has vetoed legislation that has received super majorities in the legislature before. Last year, Inslee vetoed an across-the-board manufacturing tax cut that was passed by both chambers.

To see the vote breakdown by members in the House and Senate, visit bit.ly/2GPItV8 or bit.ly/2CPz8Kl.