OLYMPIA — Toby Nixon, a longtime government transparency advocate and former state legislator, has been tapped to lead a committee that has been toiling in relative futility to scrutinize the hundreds of exemptions to the state's public disclosure laws.
Since Washington voters approved the state's public disclosure laws by ballot measure in 1972, legislators have passed hundreds of carve-outs to the law. They now number more than 600, according to the Washington Coalition for Open Government, a government transparency advocate and watchdog.
The state committee that Nixon is now leading is tasked with reviewing those exemptions and making suggestions to the Legislature on which ones to keep, change or discard. Every year the Sunshine Committee produces a report reflecting its findings.
But the Legislature has lately not acted on its recommendations, and at least two members have resigned in frustration, saying legislators were ignoring their work. There weren't enough members present to even hold the committee's scheduled quarterly meeting Tuesday.
Nixon, who served in the House as a Republican in the early 2000s, and is president emeritus of the Coalition for Open Government, was appointed by Gov. Jay Inslee in late February. He says he can bring knowledge of the legislative process to the role, and hopes he can get legislators to hear and vote on the group's recommendations.
"That's truly what it's going to take to reenergize the committee, is to know that their recommendations will actually be heard and acted on," he said.
Mike Faulk, spokesperson for Inslee, said the committee "is one of the most important we have, but it's been difficult finding people willing to serve."
"We're excited Toby is going to take on this work," Faulk said in an email. "He is a longtime open-government advocate, consistent with the governor's position on transparency."
Nixon thinks the committee should take a more targeted approach to getting its recommendations into law, and that it can do more to engage people who have a stake in any proposed changes and get them on board.
While he doesn't think that exemptions are the biggest issue facing the public's access to information in Washington — he said agencies rarely use incorrect or inappropriate exemptions when redacting records, with the possible exception of attorney-client privilege — he says it's still good housekeeping.
"You want the law to not be seriously out of date and no longer reflecting reality," he said.
Nixon's appointment comes as the legislative branch defends itself against lawsuits from open-government advocates over its use of "legislative privilege," which legislators have used as an excuse to redact documents from public view.
In February, the Coalition for Open Government released a report sounding the alarm about the "erosion" of Washingtonians' ability to access government records.
New approach to exemption changes
Some exemptions are pretty straightforward and easy to comprehend, Nixon said, like keeping Social Security numbers or credit card numbers confidential.
But many exemptions concern information provided by specific industries to the government and, generally, many exemptions are passed as part of a broader proposal. For example, if legislators pass a new regulation on agriculture, they might also pass a carve-out for information the companies provide to the state as part of that new regulation. The idea behind the exemption is often to prevent the release of proprietary information or trade secrets to their competitors.
Rather than trying to push through one big "omnibus" bill that would change a slew of exemptions concerning multiple issues or topic areas through the legislative committees working on general government policies, Nixon suggests breaking down proposed changes by topic area. Those can then be routed to legislative committees designed to deal with those specific policy issues.
And he says that parties with a stake in the exemptions, like businesses regulated under a policy that created an exemption, should be involved from the start.
Legislative apathy
The committee has 13 positions total, including four legislators, and has historically included representatives of news organizations and government agencies, along with members of the public.
There are two Democratic lawmakers and two Republicans, one each from each chamber. Sen. Jeff Wilson, R-Longview, and Rep. Jenny Graham, R-Spokane, showed up to the meeting Tuesday morning.
But with one person short to meet quorum (they needed seven), the committee couldn't conduct business. Neither Democratic member, Sen. Sam Hunt, D-Olympia, or Rep. Larry Springer, D-Kirkland, attended.
Hunt said he didn't go to Tuesday's meeting because he was on vacation. He said he hasn't attended the last few meetings because he is frustrated by their approach.
"They just haven't come up with what I would consider substantive recommendations," he said.
The committee looks at old state statutes and regulations, he said, adding taking time to have a hearing or repeal a part of the law "that isn't even used anymore just doesn't reach the level of seriousness in how we want to deal with schedules and times."
Springer said the committee was a good idea when it began, but the premise is "kind of moribund."
With "hundreds and hundreds and hundreds" of exemptions," and for the group to meet just four times a year, "you're just not going to get much done," he said.
Nixon says it's been "really difficult" over the years to get legislators on the committee to actively participate. One of his goals is to engage with legislative leaders and help them understand the importance of the work. He wants them to appoint members from their caucuses who will show up and care.
This session, Wilson proposed Senate Bill 5779 to allow more flexibility for when the committee needs to meet. It would have dropped the requirement for them to convene quarterly — it's particularly hard in the first quarter as lawmakers are in the throes of the legislative session — but just four times during the year.
The bill would have also required that the committee's report be presented to "appropriate" legislative committees when they hold meetings in between sessions. Hunt added an amendment to remove that provision, which Wilson said effectively gutted the bill.
"That amendment simply says we'll present it to the body, but to who? And what happens after that?" Wilson said. "The bill, of course, didn't get anywhere. And I wish it had, because we've got to find a better way to be heard on our recommendations."
