A Thurston County Superior Court Judge ruled in favor of state lawmakers’ use of “legislative privilege” to withhold certain public records on Friday.
Judge Mary Sue Wilson presided over the case between Arthur West, an open government advocate, and the Washington State Legislature. Jeffrey T. Even, the former Deputy Solicitor General, argued on behalf of the Legislature in the lawsuit.
West filed the case in January after it was first reported by McClatchy that lawmakers were silently using the “legislative privilege” exemption to withhold public records. West filed the lawsuit for declaratory and injunctive relief regarding whether lawmakers can claim “legislative privilege” to withhold records and shield them from the state’s Public Records Act.
Wilson ruled that the so-called “legislative privilege” exists in Article 2, Section 17 of the Washington State Constitution, in-line with lawmakers’ assertions.
That article says that “no member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”
West, on the other hand, argued that the language of the article “is plain and unambiguous, and does not contain even a shadow of an exemption from disclosure.” West also argued during the hearing that communications such as texts and emails didn’t exist when the constitution was written, and as such the original intent of the Speech and Debate Clause was not meant to protect legislators from anything other than what they say on the debate floor.
Defendants also argued that federal case law exists to support the constitutionality of “legislative privilege.” Several other states that have considered the exemption in courts have upheld the ability for lawmakers to shield their records from disclosure based on the federal precedent.
The actual extent of the privilege and how far it will extend to lawmakers’ use of the exemption has not yet been decided, and will be discussed at a later date.
In a phone interview with McClatchy, West said that he was “disappointed” in the ruling. He also noted that he would be filing an appeal in the case.
“I’m concerned about how broad this exemption could come to be,” said West. ” …I don’t have a problem with legislators not being held liable for words that they speak publicly. But I do have a problem with them being able to hide words that they speak privately.”
Sarah Bannister, Secretary of the Senate told McClatchy in an email that “it is nice to have the additional clarity provided by today’s ruling.”
Another lawsuit regarding “legislative privilege” is still moving through the courts and will be heard in November. That judge could still possibly rule in favor of petitioners Jamie Nixon, an open records advocate, and the Washington Coalition for Open Government, a nonprofit government watchdog group.
That case along with West’s will most likely be combined and brought before the Washington State Supreme Court, according to West and the attorney for those clients, Joan Mell.
Mell told McClatchy in an interview that Judge Wilson revealed her bias in favoring the state government during the hearing Friday.
“This big, huge dark curtain has just surrounded Olympia,” Mell said.
If lawmakers get their way on shielding records with “legislative privilege,” Mell added that the ruling could impact the way the public can retrieve records related to deliberation on bills.
“It’s nobody’s right to know what efforts were made with regard to union activities and the union controlling what legislative outcomes are,” she continued. “The efforts for dark money to control the outcome will be invisible to the outward public and there’s no way to know how the dark money is being spent, because you can’t see who’s talking to the members or how they’re communicating on legislative specific topics.”
This is not the first time the Legislature has been involved in litigation regarding public records.
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 the lawsuit.
The Washington State Supreme Court voted 7-2 in favor of AP’s lawsuit in 2019 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.
