Open government vs. 'legislative privilege' in long legal fight - Salish Current
December 8, 2023
Open government vs. ‘legislative privilege’ in long legal fight
Questen Inghram

Thurston County Superior Court Judge Anne Egeler has ruled in favor of the state’s ability to deny records requests based on legislative privilege. The scope of the privilege is yet to be determined. (Questen Inghram / Salish Current photo © 2023)

December 8, 2023
Open government vs. ‘legislative privilege’ in long legal fight
Questen Inghram

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The battle over open government shifted back to the side of legislators last month when the right to withhold documents, emails and text on legislative matters — a so-called “legislative privilege”— was affirmed in Thurston County Superior Court. The decision leaves open-government advocates concerned about transparency and the public’s right to know the motivations behind actions of elected officials. 

Judge Anne Egeler on Nov. 17 ruled that Washington state lawmakers have a “privilege against the disclosure of records revealing internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature.” 

After media reports in February detailed how legislative privilege had begun being used starting in 2021 to deny record requests related to legislative matters as broad as a Chinese American History Month bill, the ability of legislative staff to unionize and the 2021 Redistricting Commission, the Washington Coalition for Open Government (WashCOG) sued in April, with former Redistricting Commission staffer Jamie Nixon as a co-plaintiff.

Plaintiffs contend the legislature’s use of legislative privilege has no basis in the state constitution, nor any state statute or case law, and were not happy with Egeler’s decision.

“It takes away everything the state of Washington has done for public records over 50 years,” said Juli Bunting, WashCOG executive director. “It’s a sad ruling for democracy, when one legislator can decide they’re not going to release documents. I don’t know who the legislators think they work for.”

Local legislators respond

Sen. Sharon Shewmake of the 42nd District has been the only district legislator who unequivocally rejected legislative privilege. 

“As a legislator, I have never exercised legislative privilege and I have no intention of exercising the privilege moving forward,” Shewmake said in an emailed statement. 

In reply for comment about the ruling on legislative privilege and whether they would use it, 42nd District Reps. Alicia Rule and Joe Timmons said via email that they anticipate the matter reaching the state Supreme Court and are waiting for a final decision. 

“Throughout my time in Olympia, I have placed a high value on ensuring my office was transparent and available throughout the legislative process,” Rule said via email. “I look forward to the Washington State Supreme Court giving its final ruling and providing the Legislature with clarity going forward.” 

From the 40th District, Rep. Alex Ramel said in an email he would follow the guidance the courts provide; Sen. Liz Lovelett and Rep. Debra Lekanoff did not reply for comment.

A long battle

What we’re seeing is the latest chapter in a long battle,” said George Erb, secretary of WashCOG’s board of directors.

Documents such as emails and texts from other sectors of government have been subject to disclosure since the passage of the Public Records Act in 1972 by ballot initiative. State lawmakers, however, had long held they weren’t subject to the act. In 2017, a media coalition sued the legislature for not disclosing records such as calendar entries, complaints, disciplinary actions and sexual harassment reports. (A timeline below details actions around legislative privilege vis-à-vis the Public Records Act.) 

Among the denied requests which sparked the 2017 lawsuit were the meeting schedules of the late 42nd District Sen. Doug Ericksen, who was simultaneously working in the Trump Administration as interim communications director for the Environmental Protection Agency. 

In January 2018, Thurston County Superior Court found that the Public Records Act did apply to individual legislators but not the House and Senate as a body. The following month, the legislature quickly passed a bill that would exempt themselves from the Public Records Act. Gov. Jay Inslee vetoed the bill after public outcry. 

In 2019, the state Supreme Court affirmed the Superior Court ruling that the Public Records Act applies to individual legislators. 

In October 2023, a separate lawsuit on legislative privilege by Arthur West, an open government advocate, was heard before Thurston County Superior Court Judge Mary Sue Wilson who ruled in favor of the legislature.

Behind the ruling

Legislative privilege is a concept that dates back to the English Bill of Rights, written in the 17th century, meant to maintain the separation of powers by protecting lawmakers from intimidation by the executive and judicial branches. 

Egeler ruled that the state’s privilege stems in part from the state constitution’s freedom of debate clause, which reads, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” 

While that section of the state constitution does not mention documents, emails or text messages, nor public records, Egeler said in her ruling that other states and the federal government have held that their similar clauses have extended to the shielding of documents from public disclosure. The privilege also stems from the constitutional separation of powers, she ruled.

“To the extent that it applies, legislative privilege is absolute,” she said. 

Egeler said that the scope of this privilege would need to be discussed in a future phase of the ruling. Motions and declarations between the two parties will continue into next year, after the next legislative session has already begun. A scheduling hearing was held on Dec. 1.

“We not only have a right to know what the legislature is doing, but we also have a right to know why they are doing it,” Bunting said. “Why did you pick this bill that does this instead of this bill that does that? Was it because Dow Chemical objected to the first bill?”

Legislative privilege is being invoked in lawsuits over redistricting in multiple Republican-led states, including South Carolina, Texas, North Dakota, Louisiana and more. Voting rights advocates have sued over those states’ new redistricting maps, saying they minimize the voting power of Black and Latino voters, according to an investigation by ProPublica.

Multiple legislatures have argued that legislative privilege protects the data and documents they used to make their decisions from the public and judicial eye, which the plaintiffs would need to access in order to effectively argue their case that the redistricting was discriminatory. 

Bunting she is afraid that Washington state will no longer be known as “one of the paragons of transparency” and that this ruling has severely weakened the state’s Public Records Act.

“The coalition will keep fighting,” Bunting said.

— Reported by Questen Inghram

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