Thurston County judge rules in favor of lawmakers’ privilege to withhold records

A Thurston County Superior Court Judge ruled Friday that Washington state lawmakers are entitled to use “legislative privilege” to shield their records from the public.

Judge Anne Egeler presided over the case between the Washington State Legislature and plaintiffs Jamie Nixon, an open government advocate, and the Washington Coalition for Open Government, a nonprofit organization focused on government transparency.

The lawsuit was filed in April, after McClatchy first reported in January that lawmakers were denying review of records using the exemption.

Joan Mell, an attorney for III Branches Law in Fircrest, represented Nixon and WashCOG. Jeffrey T. Even, the former Deputy Solicitor General, argued on behalf of the Legislature during the hearing.

Even argued that lawmakers are entitled to the privilege because it exists in the state constitution under Article 2 Section 17, known as the Speech and Debate Clause.

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,” but it does not speak specifically to written communications.

Mell argued that the exemption is not found in state statute, or state case law. The Washington Constitution does not support the exemption either, she contended.

Additionally, the way in which lawmakers are using the exemption is unclear, as legislators and their staff have repeatedly changed the policies for how it is applied to various types of records.

In her ruling, Judge Egeler said that because “there are no appellate cases in Washington to address how the privilege applies to the production of documents by the Legislature rather than oral debate,” appellate courts have decided that in those circumstances, historical context of the adoption of the state constitution should be looked at, as well as “other states’ and federal courts interpretations of similar provisions.” She said she was “constrained” by that appellate court decision.

Egeler pointed to states such as Wisconsin and Arizona where similar provisions exist in the state constitution. Defendants had argued earlier in the hearing that the language of those constitutions is nearly identical to Washington’s.

“It is also recognized that the state constitutional provisions share a common purpose with the federal Speech and Debate Clause, which the federal courts have held apply to documents as well as oral communication,” Egeler said.

Egeler ruled that Article 2, Section 17 “provides a privilege against disclosure of records revealing internal legislative deliberations regarding bills contemplated or introduced in either house of the Legislature. As the Legislature concedes in its briefing, the privilege does not shield every legislative document or extend to acts outside of the legislative process such as political activities of the Legislature.”

But Mell told reporters after the hearing that the ruling by the court is too broad, and that she believes lawmakers could use it to apply privilege to any documents. City council members could even decide to use the privilege, she said.

“It’s gone. It’s all in the black hole, all sucked into the ether where elected officials can do as they please and you can’t find out about it,” Mell said. “It’s really far-reaching. I think that the court ignored my plea not to kill democracy.”

Nixon told McClatchy that “it’s unfortunate to see leaders in Washington push so forcefully for a retreat from the kind of transparent government the state was once revered for.”

This is the second time a Thurston County Judge has ruled in favor of the state in a legislative privilege case.

In October, Judge Mary Sue Wilson presided over a similar lawsuit filed by Arthur West, an open government advocate. Even argued on behalf of the Legislature in that lawsuit as well.

Mell told McClatchy that plaintiffs plan to appeal, and that both lawsuits will ultimately end up before the state Supreme Court.

This is not the first time the Legislature has fought to retain their privacy in public records.

In 2018, lawmakers completely bypassed the bill-making process to expedite legislation that would exempt them from the state’s Public Records Act. A bill introduced during the legislative session that year was only public for 48 hours before passing both chambers of the Legislature with overwhelming approval.

After no debate, the measure passed the Senate 41-7, and the House with 83-14. Gov. Jay Inslee vetoed the bill shortly thereafter due to public outcry.

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 and clarified that the Legislature is subject to the Public Records Act, the AP reported.