By Tracy Record
West Seattle Blog editor
“Whatever the legitimate reasons for this bill, those reasons will forever be overshadowed by the fact that this was crafted behind closed doors without any benefit of sunshine.”
That’s what the League of Women Voters says in its analysis of SB 6617, the public-records bill that passed the state Legislature at lightning speed a few days ago and is now the subject of a campaign to urge a veto by Governor Inslee.
The latest voices calling for a veto include our area’s King County Councilmember Joe McDermott (a former legislator himself). He and fellow County Councilmember Reagan Dunn sent the governor this letter today:
That puts him on the side opposing the stance of our area’s three current state legislators – Sen. Sharon Nelson (the Maury Island-residing Senate Majority Leader) and West Seattle-residing Reps. Eileen Cody and Joe Fitzgibbon – all of whom voted to approve it.
We asked them all for comment/explanation today, and have received two responses. But before we get to that – if you haven’t heard about this bill, let alone the uproar surrounding it, we refer again to the LWV’s analysis for a summary:
While the headlines focus on the fact that the bill states the legislature is exempt from the official Public Records Act (PRA), the next statement is “the legislature is subject to separate disclosure requirements.” The bill then goes on to establish a number of specific requirements regarding public records that do not currently exist in law. These include the release of calendars, names of those met with and communication with lobbyists. None of this is required under current law, nor has it been part of general practice. What is specifically exempted is personal correspondence with constituents, which often contains very personal Information.
But that’s no excuse for the rush job, the LWV notes. And other outcry includes a particularly loud voice, The Seattle Times, which made this the subject of a first-in-its-history front-page editorial today. Times As editorial-page editor Kate Riley described it, they are opposed to the bill because it “slams the door to government records a judge said the public should have access to.” Riley’s report quotes Times publisher Frank Blethen as saying, “In the 37 years I have served as a publisher in our state, I have never seen as blatant or dangerous an attack on your right to know than the inexplicable attempt of bipartisan legislative leadership in Olympia to essentially keep you from knowing what they are doing.”
Public-records access is the lifeblood of what our business calls “accountability journalism.” Obtaining them isn’t easy, but the fact they are legally supposed to be made available can at the very least be considered something of a check on power. And in this time when there are fewer people in the journalism business, due to a long list of factors, many are disturbed by anything constraining the ability to get public records.
Now, to what our legislators have to say. We sent requests for comment to all three this morning. We have not heard back from Sen. Nelson or her staff. Reps. Cody and Fitzgibbon have both sent lengthy responses, and we are publishing both in their entirety, after the jump, along with contact info – his response first, because we received it first:
I have heard from many constituents unhappy with my vote on Senate Bill 6617, the Legislative Public Records Act. Among the concerns I have heard include: frustration with the process by which this bill passed, opposition to the exemption in the bill for disclosure of constituent emails, and accusations that the Legislature is taking a step backwards on transparency. While I am also frustrated with the speedy process, I stand by my vote, which will result in the largest expansion of disclosable public records in the 46 years since the Public Records Act passed. For the first time, legislators’ calendars, legislators’ correspondence with lobbyists, and final dispositions of disciplinary proceedings against legislators will be available to the public. I believe the balance that this bill strikes between transparency and privacy is a fair solution that will serve the public interest. I apologize for the long response but it is necessary given the importance of this issue.
In January, a Thurston County Superior Court judge ruled that, for the first time in 46 years, individual legislators are subject to the Public Records Act. The Legislature has held for many years, as have Democratic and Republican attorneys general, that a distinct, narrow definition of public records applies to the House of Representatives and the Senate. The judge did not overturn this law – however, he did rule that individual legislators constitute our own state agencies and are not subject to the narrow definition that governs the institutions of which we are members. This ruling would create absurd and unworkable results that would waste taxpayer dollars. All 147 members of the Legislature would be required to have copying facilities available; to double (from one to two) our number of staff, with one of our two staff members entirely assigned to responding to public records requests. Thousands of constituent emails that were sent to us, without the expectation that they would be shared with the public, would immediately become public. The vast majority of the Legislature agreed that this result would not serve our constituents, the taxpayers.
As are many of you, I am unhappy with the speedy process by which this bill passed through the Legislature. It would have been better to move the bill through House and Senate committees so there would have been more opportunity for public input. While the House and Senate State Government Committees held a joint work session on the bill on Thursday of last week and heard public testimony, it would have been better to take an extra day for each chamber’s state government committee to separately hear input from the public on the bill. A fast process was necessitated by the fact that the ruling came down in the middle of an extremely busy legislative session, the Legislature’s request that the Supreme Court issue a stay on its ruling had not yet been acted on, and if the ruling went into effect, it would have necessitated changes described above that would have effectively stopped the Legislature from all other work for the remainder of session. I would have strongly preferred that the bill move through legislative committees for hearings and votes in the normal process. But I am not in the habit of voting against policies I agree with just because the process was flawed.
Many people have written to say that all correspondence should be subject to disclosure, as it is with local governments. I sympathize with local officials who have longstanding frustrations with the Public Records Act and the way it can be used to intimidate and retaliate against officials, elected and otherwise, when they make difficult choices. But I do not believe that constituents writing their elected officials have the expectation that everything they write to us will be available for anyone else to review. Often, our office receives correspondence about sensitive personal issues – for example, related to immigration status, domestic violence, sexual abuse, and medical issues. Even with redacting names and identifying details, making these constituents’ correspondence public would create a chilling effect for people who might otherwise look to their legislators’ offices for help.
However I do believe that legislators’ calendars and legislators’ correspondence with lobbyists should be disclosed. And under this law, they will – for the first time ever. I am happy to share my calendar at any time if you are interested in knowing how I spend my days. If you believe that the law as interpreted by Thurston Superior Court in January is the law as it stands, then 6617 is a step towards protecting privacy of constituents over transparency. If you believe that the status quo is the Public Records Act as it has been consistently interpreted by the Legislature for 46 years, this law is a huge step towards greater transparency.
I deeply regret the way that this legislation has been characterized in the press. I am concerned that very few of the news articles I have read covering this bill have acknowledged how many new records will be disclosable under this bill. But with that said, I know that many of you will read my explanation above and still be opposed to my vote. I understand and accept that you may be disappointed anyway, and in that case I will respectfully disagree. But I appreciate you taking the time to understand this legislation and why all three of your legislators agreed that it was the right thing to do, even knowing the likely consequence of outrage in the news media and with many of you.
Again, that was the response from 34th District Rep. Joe Fitzgibbon.
Next, the response from the 34th District’s other state Rep., Eileen Cody. First, she told WSB, “I know that there is a lot of concern being raised about the legislature trying to keep our work secret. I also know that the press believes that everything we say or do should be public but I believe that constituent correspondence should be exempt from disclosure. As chair of the health care committee I get regular correspondence from people across the state that are requesting help either dealing with the state, a hospital, or an insurer. I do not believe that their health care information should be open to public scrutiny. That being said I do regret that the legislature did not take the time to have regular hearings. I agree that the public perception is bad but it is too late to change that.” This is what she has been sending to constituents:
Thank you for reaching out. If Judge Lanese’s opinion stood, each legislator would have to appoint their own public records officer; adopt rules for public disclosure through the Washington Administrative Code; and be available at least 30 hours a week year-round for public inspection of records. So, we did exactly what Attorney General Ferguson said we should do and passed this bill to expand and clarify how legislative records should be treated. HB 6617, will create a new public records department at the legislature specifically to respond to public records request in a timely and efficient manner.
The version of the bill that passed both the House and Senate codifies and expands our current public disclosure rules, more legislative records will be subject to public disclosure, including:
Legislators’ calendars, including the names and dates of individuals and organizations with whom they’ve met
Emails and text messages with lobbyists or any other person paid to influence legislation.
Final dispositions of investigations and disciplinary proceedings by administrative committees that oversee the House and Senate.
The bill does continues to protect certain categories of documents, such as constituent correspondence. These exceptions are balanced and appropriate. As chair of the House Health Care Committee, I receive emails from not only my own constituents but from people across the state. Many relate sensitive health care problems that they have experienced in dealing with hospitals and health insurance companies. Many people share personal information and seek my help in resolving their problems. These range from government benefit issues to sensitive health information to challenging family situations.
Beyond this, I don’t want mail constituents send to me to ever be hindered by privacy concerns. If constituents knew that their correspondence could wind up on the front page of the Seattle Times, it could have a chilling effect on the First Amendment right to petition the government for redress of grievances.
In the past few years, I haven’t received a SINGLE public records request from a constituent. Only from the press. If the press want to know which lobbyists I’m talking to, this bill ensures they have that access. They never had that before. If my constituents also want to have their information disclosed to the media or anyone else who asks for their personal information, they can ask me to amend this bill in the future and I’ll work on it.
I won’t defend the process this bill went through. It was rushed, it wasn’t transparent, and it wasn’t accountable to the public. I’ve made my feelings about that clear to my colleagues, as have many others. We have to do better in the future.
I support openness and transparency. The plaintiffs in the lawsuit against the Legislature, the news outlets, say this isn’t transparent. I disagree and think their motivations are what is not transparent. We are in a lawsuit because they want every record. We want to protect our constituents. There MUST be a middle ground where we can meet.
This bill is an attempt to reconcile concerns about openness of government with the need to retain privacy for our constituents and the open flow of ideas between members throughout the legislative process. If you have further questions about what will be subject to public record requests, I suggest you look at the most recent bill report http://lawfiles/biennium/2017-18/Pdf/Bill%20Reports/House/6617.E%20HBR%20APH%2018.pdf.
That last URL doesn’t work – we’re guessing it’s internal – bill reports for this particular legislation are linked here, and it appears this is the public form of the same URL with which Rep. Cody’s message ended. (Again, we have yet to hear back from our area’s state senator, Senate Majority Leader Sharon Nelson; if and when we do, we’ll add her response here.)
If you want to share your thoughts with your legislators on this bill (or anything else), click each name for the page with full contact info:
Contact info for Gov. Inslee is here.