OLYMPIA — Five years ago, the Washington Legislature was dragged, kicking and screaming, into compliance with the state's Public Records Act, which says their emails, text messages and other documents should be available for public scrutiny.
Court rulings and Gov. Jay Inslee's veto of a rushed attempt by lawmakers to exempt themselves from disclosure seemingly settled the matter, bringing legislators under the same law that applies to local government leaders across the state.
But lately, legislators in the Democratic-majority House and Senate have been quietly asserting a new means of shielding some of their internal records from public view.
As early as 2021, they began to black out documents in response to public-records requests, asserting they have a "legislative privilege" to keep a swath of their internal communications secret. But it wasn't until early 2023, when McClatchy newspapers first reported the practice, that the broader public learned lawmakers were using that justification to withhold records.
Legislators have defended that practice in court, and Thurston County judges have initially sided with their arguments in two separate lawsuits — allowing individual lawmakers to invoke the alleged privilege even as its legal justification remains in dispute.
The campaign by lawmakers to conceal some of their records has alarmed transparency advocates, who fear it will undo the hard-fought records victory from five years ago and allow elected leaders to cherry-pick what documents they allow the public to see.
"The problem is you have people you've elected that want secrecy about their decision making," said Michele Earl-Hubbard, the attorney who successfully argued the 2019 media case to the state Supreme Court. "They want to shut us out of the process."
According to a recent Crosscut/Elway poll of 403 Washington registered voters, most respondents — 82% — believe legislators should comply with the state's public disclosure laws.
Leaders have publicly defended the privilege, and the Speaker of the House is using the lawsuit as a justification to keep using it. As legal backing for their case, several lawmakers have pointed to the "executive privilege" that courts have said Washington governors can invoke in some instances to withhold records, arguing they need the same protections.
With the picture in legal limbo, a survey of all 147 members of the state House and Senate by The Seattle Times and McClatchy shows lawmakers are taking a wide range of stances on the issue.
About a third of lawmakers said they do not intend to invoke legislative privilege. Others, including top legislative leaders, strongly defended the use of a privilege exemption.
Others hedged, saying they have no plans to use it, but want to see the outcome of the lawsuit over the issue or that they believe the state constitution grants the privilege. Dozens did not respond to the survey, declining to let the public know where they stand.
House Speaker Laurie Jinkins, D-Tacoma, told reporters at a news conference in early January that she may be the legislator who has used the privilege the most.
"I guess I'm a true institutionalist," Jinkins said, "which means I feel like I should be applying it in the limited circumstances that we think it should be used so that the court has good facts to review when they eventually make their decision. And so that's why I'm using it now. Once the court makes their decision, I may make a totally different choice about waiving everything or waiving most things."
Sen. Andy Billig, D-Spokane, who leads Democrats in the Senate, said at the same event that he wasn't using it and didn't have any plans to, but said that the courts had established a legislative privilege.
"Legislative privilege exists, and it should be used sparingly," Billig said.
Senate Republican Leader John Braun, of Centralia, said that courts have affirmed the existence of the privilege.
"We should defend it," he said. "Should we use it? No."
Some lawmakers have already been citing the privilege to deny public access to potentially embarrassing records.
For example, they've withheld documents about a push to unionize legislative staff and communications about a controversial debate on what criminal penalties, if any, should be imposed on people for possession of fentanyl, heroin and other drugs.
Survey says ...
About 40% of lawmakers — nearly equally divided between Democrats and Republicans — surveyed said they didn't intend to assert a special privilege to withhold their emails and other records, without equivocating.
"I have never asserted privilege and objected when the public records officer attempted to assert legislative privilege in regard to records involving communication for which I was a participant," said Rep. Gerry Pollet, D-Seattle, who has supported challenges to the Legislature's practice.
"I am a firm believer in open government and will always be 100% transparent with the people of Washington state," said Rep. Travis Couture, R-Allyn.
However, other lawmakers strongly defended the concept of a privilege, arguing it's necessary to keep internal deliberations secret.
House Majority Leader Joe Fitzgibbon, D-Seattle, said he had not invoked privilege so far, but added, "I reserve the right to do so in the future if it is necessary to protect our ability to ask honest and sometimes difficult questions of legislators and legislative staff."
State Sen. Noel Frame, D-Seattle, defended the existence of a privilege against disclosure for lawmakers.
"I believe legislative privilege should be applied sparingly and judiciously, but there is the possibility that I may decide to use it in the future," Frame said. "I did use legislative privilege in the past, on deliberations with staff over a potential amendment that we considered and ultimately chose not to introduce."
Some appeared uncertain.
State Rep. David Hackney, D-Tukwila, said he did not believe in "a blanket privilege" but that he wanted to be able "to protect others from embarrassment." He said he invoked the privilege to withhold records once "out of caution, even though I did not fully understand it."
A substantial group hedged, saying they don't plan to invoke privilege, but believe a privilege exists. Some cited threats from other branches of government and others sought to protect the privacy of constituents.
"I can foresee no circumstance where I 'intend' to invoke my legislative privilege," said Sen. Keith Wagoner, R-Sedro-Woolley. "That is not the same as renouncing the right, which is enshrined in the State Constitution and has been upheld by the courts."
"I don't plan to invoke the privilege, but I can't say it will never happen," said Sen. Brad Hawkins, R-East Wenatchee.
Others refused to explain where they stand.
"I decline participation in this inquiry," wrote state Rep. Debra Entenman, D-Kent, in response to The Seattle Times/McClatchy survey. (Entenman at least acknowledged the question. More than 30 lawmakers did not respond to the survey at all).
While legislators have argued that they need a privilege akin to the "executive privilege" that courts have afforded Washington governors, Inslee notably has not asserted executive privilege during his three terms in office.
Major candidates running this year to succeed him say they plan to follow his example.
Democrats Bob Ferguson, who is currently the state attorney general, and Mark Mullet, a state senator from Issaquah, and Republican Dave Reichert each told The Seattle Times in recent interviews they would not exercise the privilege as governor either.
"There's already a distrust of government from the general population," Mullet said of the legislative privilege. "So I don't understand why in a million years we would do anything to create more of a distrust."
How they justify privilege
Jeffrey Even, a lawyer for the Legislature, argued in court filings that the privilege stems from Article II, Section 17 of the state constitution, which protects legislators from "any civil action or criminal prosecution whatever, for words spoken in debate."
Such a privilege has "developed historically to preserve the independence of the Legislature by providing legislators with sufficient room for candid deliberation," Even wrote in a court motion in October.
Transparency advocates push back on the assertion that the state constitution's speech and debate clause enables lawmakers to conceal their emails and other records.
"This legislative privilege argument is a distortion of a constitutional provision that is meant to, I think we all can understand, let them do their job as legislators without worrying that they're going to be prosecuted for something they say on the legislative floor," Earl-Hubbard said. "And to prevent political attacks against them for their legislative duties. It's criminal penalties, is what it's really for."
Some Republicans have used the constitutional argument.
House Republican Leader Drew Stokesbary, of Auburn, said he didn't intend to invoke legislative privilege and that it should be used "sparingly, if ever." He says a legislative privilege protects the Legislature from the judicial branch and executive branch, but, in an interview, did not name a concrete example. He did confirm that his interest in the privilege had more to do with being sued or prosecuted for what legislators say.
"My thinking on legislative privilege is not a counterbalance against the Public Records Act, it's a counterbalance to the other two branches of government," Stokesbary said.
Jinkins herself has asserted privilege to block release of emails related to the state's 2021 redistricting commission fiasco and last year's state House meltdown over a new drug-possession law.
In an interview Feb. 19, Jinkins said lawsuits over withholding of documents are the only way to determine to what extent legislative privilege should be applied.
"My thought has always been on this that the courts will decide whether or not the privilege exists," Jinkins said. "And eventually the [state] Supreme Court will talk about what the limits of it are. And then, like every member gets to decide that question, like how much, what kind of a view they want to provide into their thinking."
When asked how the privilege was compatible with the state's Public Records Act, Jinkins began questioning reporters.
"How do you get a court case if a privilege is never used?" Jinkins said. "Honestly, I'm asking you a question. I'm not looking to be quoted by that. I'm looking to ask you a question back: How do you think we would get court guidance?"
Even without a new privilege, state lawmakers can cite other exemptions in the Public Records Act to justify withholding certain records. For example, the law contains an exemption that can be applied to records reflecting policy discussions before decisions have been made. It's a narrow carveout, and lifts once a public body has taken final action.
Public outcry, response
Many legislators will be up for reelection this year, and they will go before an electorate that has strongly favored legislative branch transparency.
In 2018, when lawmakers attempted to pass a law carving themselves out from the Public Records Act, the Legislature and Inslee were deluged with emails and phone calls from constituents demanding they side with public disclosure.
The issue has been more muted this time around, with no hot-button legislation the public can weigh in on at legislative hearings. Still, news stories and alerts by transparency advocates have again led people to urge legislators to abandon their secrecy quest.
"Stop hiding stuff," Aaron Lang wrote to legislative leaders in January 2023, after McClatchy first reported legislators were claiming a privilege to withhold records.
That same month, Nikki Lundberg, of Allyn, Mason County, wrote to Jinkins, urging her to stop the practice.
"One of our important rights is to know exactly how and what you are doing through the Public Records Act so we have some way to voice our concerns and potentially vote out those who don't make legislative decisions we agree with," Lundberg wrote. "By exerting this controversial 'privilege' you make us question you even more than we currently do already."
Slippery slope
If the Legislature wins a privilege exemption, transparency advocates worry it could snowball to local governments, allowing city and county councils across the state to argue they too have a legal basis to withhold information.
"If they give this to the state Legislature, the argument is going to try to be applied to legislative action by elected local leaders, as well," Earl-Hubbard said, "which now will remove every person and everything they want to say is exempt. So, it basically guts the [Public Records Act]."
The Washington Coalition for Open Government, in a report issued last month, said that the privilege debate is just one example of an overall "erosion" in Washingtonians' access to records about what government officials are doing.
The coalition report faulted the Legislature and government agencies for gradually undermining the Public Records Act, by failing to properly maintain and disclose records and by adding hundreds of new carveouts to the law in recent years.
There are now nearly 700 exemptions to the records act, which was first established by a voter initiative in 1972. In addition, people who request public records are seeing longer wait times for requests to be completed. In 2019, the average wait was 15 days. In 2022, it was up to 23 days.
Those developments are on top of the more recent effort by top legislators to establish a privilege against disclosure.
"The public's right to know is eroding. I would say we are at a tipping point," said Mike Fancher, president of the nonpartisan coalition's board, and a former Seattle Times executive editor. "Washington state in modern history has been regarded as one of the best states in the nation on open government — and that's at risk."
