A lawsuit has been filed in Thurston County Superior Court challenging the Washington state Legislature’s use of “legislative privilege” to withhold public records.
The lawsuit was filed by open government activist Arthur West, who recently settled a public records lawsuit with the Washington State Redistricting Commission for $40,000.
Court filings show that West is filing for declaratory and injunctive relief regarding whether or not lawmakers can claim legislative privilege to withhold records and shield them from the state’s Public Records Act.
Additionally, the lawsuit aims to find out whether the constitution itself gives lawmakers the authority to exempt themselves from releasing certain records, with West asserting that legislative privilege is “an issue of major public importance, and an actual dispute between parties having genuinely opposing and substantial interests.”
McClatchy first reported on state lawmakers’ use of legislative privilege on Wednesday Jan. 4. By Thursday, leading legislators were asked during a pre-legislative press conference whether or not they supported using the claim.
Some leading lawmakers denied the use of the exemption altogether while some admitted that it is used “rarely.”
House Speaker Laurie Jinkins, D-Tacoma, and Senate Minority Leader John Braun, R-Centralia, both claimed that the exemption is rooted in a constitutional provision.
The existing provision in the Washington State Constitution says that “no member of the Legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate,” but it does not speak specifically to public records, such as emails and texts, held by legislators.
Public records from multiple sources also showed that lawmakers have invoked the privilege more frequently within the last year, and those denials have cited Freedom Foundation v. Gregoire. The 2013 ruling by the Washington state Supreme Court said that 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.
This is not the first time state legislators have tried to conceal public records. In 2018, lawmakers completely bypassed the bill-making process to expedite legislation that would have exempted them from the state’s Public Records Act.
A bill introduced during the legislative session that year was only public for 48 hours before passing both chambers of the Legislature with overwhelming approval.
After no debate, the measure passed the Senate 41-7, and the House with 83-14. Gov. Jay Inslee vetoed the bill shortly thereafter, after news reports about the votes led to public outcry.
In 2017, a lawsuit was filed by The Associated Press after the outlet was denied “sexual harassment reports, calendar entries and other documents.” Other media outlets also signed on in support of that lawsuit.
In 2019, the Washington State Supreme Court voted 7-2 in favor of AP’s lawsuit to reject “lawmakers’ assertion that they are not required to turn over daily schedules, emails, text messages and other materials related to their work,” the AP reported.
West’s lawsuit cites the precedent set by that court decision. The trial date for the new lawsuit is set for May 12.