By Dick Clever
Special to The Times
“The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
— Preamble to the state Public Records Act
Who is whispering to your legislators via email, letter or text? We have a right to know who is trying to influence lawmakers.
In 1972, the people, fed up with legislative chicanery, organized and passed an initiative to lift the curtain surrounding what their representatives were doing in secret. Initiative 276 created the Public Records Act (PRA), intended to shine a light on state and local government.
RELATED Sunshine Week: Learn more about your right to know
The Washington state Legislature has spent the last half-century weakening the PRA, slapping some 600 exemptions to the statute until it begins to resemble the Pike Place Market gum wall.
Most of all, the Legislature insists on exempting itself from the public records law. Its efforts to do so spawn an amazing degree of bipartisan cooperation.
Back in the freewheeling days before I-276, cases of booze would be delivered to a ranking legislator’s office. No charge. No questions asked. A gift from a lobbyist.
There were other goodies, as former Associated Press reporter David Ammons recalls. Fishing trips to distant resorts. Free travel to the East Coast to meet with high-ranking corporate officials eager to make their case for special treatment.
Meetings would be held outside of public view. Records concealed, or not kept at all.
Ammons arrived in Olympia in 1971, a fresh-faced kid just a year after graduating from the University of Washington. He was astonished by the behavior he saw.
“I was kind of a holier than thou,” he said. “The booze was being hauled up the elevator to leaders’ offices.”
And the sexual harassment of women was endemic, he said.
Then came Watergate. The people’s faith in government from Washington, D.C., to state houses was shaken. I-276 was born out of a growing public disgust.
Open government would be finally written into law. The late Michael Hildt, a young director of the Washington Coalition for Open Government (WashCOG), filed Initiative I-276. The late U.S. Rep. Jolene Unsoeld, a champion of open government, crusaded for the initiative as a state legislator.
The law was seen as a tool to force more openness not only from the state Legislature, but local governments.
Despite bipartisan legislative efforts to derail the initiative by proffering two competing, though weaker, measures for the 1972 ballot, I-276 won with more than 70% of the vote — a landslide.
It didn’t take disclosure-averse legislators long to attack what they considered an incursion into their prerogatives.
WashCOG, in a letter to the Legislature in January of 1973, decried attempts by opponents of I-276 to denigrate the measure.
“Opponents of Initiative 276 are now claiming that although well intentioned, it was ill-considered and poorly drafted,” the letter said. “This is a familiar tactic traditionally used to rationalize amending an initiative passed by the people.”
A Sunshine Committee formed by statute in 2007 has tried, with little success, to offer suggestions for reviewing many of the exemptions to the PRA enacted by the Legislature. One member, attorney Kathy George, has already resigned.
The committee gets no respect from lawmakers and remaining committee members are wondering if there is any purpose in continuing.
Legislators have regularly claimed that the PRA does not apply to itself. A lawsuit by The Associated Press and other media companies challenged that claim.
Michele Earl-Hubbard was a lead attorney in that lawsuit, which brought a 7-2 ruling of the state Supreme Court in 2019 informing the Legislature that it is, indeed, bound by the Public Records Act.
Ever persistent, legislators have now devised a fancy new avoidance of the PRA: “Legislative privilege,” they call it.
Earl-Hubbard, a top media law attorney in Washington state, scoffs at the Legislature’s latest attempt to dodge the PRA.
“The legislators are alleging such privilege based on state and federal constitutional provisions that prevent legislators from being arrested and held liable for what is said on the legislative floor,” Earl-Hubbard said. “It does not apply to records and does not exempt records. It is a made-up, nonexistent, unsanctioned ‘privilege’ legislators are trying to grant themselves.”
Furthermore, a bill introduced this year in both chambers — HB 1597 and companion SB 5571 — would impose even more obstacles to access public records. Such attempts to further erode the PRA should be dropped immediately.
It is time for a new citizen initiative to fix what the Legislature keeps breaking.
Dick Clever has worked at The Seattle Times, The Seattle Post-Intelligencer and the Skagit Valley Herald.