Access to public records could be at risk in WA with litigation, change of power, experts say

Washington state could be backsliding on its commitment to open government if certain events from the last few months alone are to be considered.

Since the beginning of 2023, agencies such as the Office of Financial Management, the Attorney General’s Office and the Legislature have come under scrutiny for the mishandling or withholding of public records.

While a study has ranked Washington as the second best state in the country for transparency, some experts warn that the public records system as a whole needs to be reinforced before the state backslides, or worse, falls to the bottom of the public records ranks at the expense of taxpayers.

In February, McClatchy and Crosscut joined together to document the story of how the Legislature has spent more than 15 years attempting to consolidate its power and keep secrets from citizens by invoking legislative privilege. Both outlets again teamed up for this report.

As the state potentially looks to elect a new governor in 2024, some say the executive branch could make the most difference in setting the standard for public records transparency moving forward.

Transparency in Washington

According to a study conducted by Associate Professor David Cuillier at the University of Arizona School of Journalism, Idaho is the only state that currently outscores Washington in terms of transparency. Alabama is ranked dead last on that list, and many other southeastern states rank low on the list as well.

Public records laws in Washington are well-known in other places for being transparent.

Megan Rhyne, executive director for the Virginia Coalition for Open Government, told McClatchy and Crosscut in an interview that people in states such as hers wish they had similar transparency laws to Washington’s.

One of the reasons she considers Washington public records laws to be ahead of the others is because of the “teeth” behind enforcement of those laws.

Others agree.

Jeff Roberts, the newly elected president of the National Freedom of Information Coalition and a former Denver Post reporter, told McClatchy and Crosscut in an interview that Washington state is ahead of other states in the sense that anyone can sue the government for violations of the Public Records Act.

One such lawsuit was filed against the state Legislature by a Washington resident this year for withholding records, and other lawsuits are expected after the current session adjourns on April 23, according to a board member for the Washington Coalition for Open Government.

However, settlement money is paid by taxpayers, as in the case of former Seattle Mayor Jenny Durkan and former Seattle Police Chief Carmen Best, who deleted hundreds of texts pertaining to the 2020 George Floyd protests and the abandonment of the Seattle East Precinct. The city of Seattle agreed to pay $200,000 in that case while vowing to improve public records transparency.

The 2021 Washington State Redistricting Commission has had to pay out money too for its admission that text messages were deleted in the map redrawing process, and those fines also were paid by tax revenue.

Cuillier noted that Pennsylvania has a “model” system for resolving public records issues, and one Republican lawmaker from Centralia, Rep. Peter Abbarno, proposed a bill echoing a similar intent for Washington late this session. The bill would create an independent transparency ombuds office, but would not be a replacement for the current method of resolving public records violations, he said.

Abbarno told McClatchy and Crosscut in an interview that he knows the bill will not go anywhere this session, but that he hopes it opens up a conversation in the future about resolving public records issues.

What’s happening with records now

But recent and persistent attempts by Washington lawmakers, state agencies and city leaders to flout public records laws could be jeopardizing Washington’s status as a powerhouse in records transparency.

For example, the Washington Supreme Court eventually will have to consider whether state lawmakers have the ability to invoke legislative privilege to shield their records from the public. The state will litigate that case with taxpayer money.

And it is possible the state’s high court could expand the use of legislative privilege for state lawmakers.

Meanwhile, several pieces of legislation were introduced by state lawmakers this year to create more exemptions in the state’s public records laws, including a bill that would have limited the ability for individuals to take action against government agencies for public records violations.

In contrast, no recent efforts have been made to reinforce public records laws in the state, and the task force created to review exemptions to the Public Records Act, the Sunshine Committee, is even now considering disbanding after it said that its recommendations have ceased to be acted upon by the Legislature for the last few years.

More exemptions have been introduced than reinforcements to the 1972 Public Records Act since its introduction.

“If Washington shifts its laws, it’s going to be another Alabama,” Cuillier told McClatchy and Crosscut in an interview. “No offense to Alabama ... but I don’t think that’s what Washingtonians want.”

However, Rhyne said every state tries to find ways to withhold records, so that is not unique to Washington or to her state of Virginia.

Additionally, rollbacks of transparency are occurring not only on a state level, but with the federal Freedom of Information Act, according to Cuillier, Roberts and Rhyne.

How access to public records affects society

Access to public records is not a partisan issue, and access to records affects everyone, Cuillier contends.

“It’s critical that the public gets to see how the sausage is made, and what’s going into the decisions that affect their lives,” Cuillier said. “And the only real way we can know that is to have access to their communications.”

Cuillier noted that it just makes sense for public officials to be on good behavior if they know others are monitoring their decisions.

But, he said, “if no one is watching you, you’re going to steal that cookie out of the cookie jar, that’s just how humans work.”

For example, the professor cited a study that showed how municipalities work harder to have cleaner drinking water when there are broader transparency laws. Food at restaurants is safer because public records laws allow oversight, according to another study cited by Cuillier.

“Access to information about government is really important for the way our democracy is supposed to work,” Roberts said.

Going forward

At a press conference with Gov. Jay Inslee on April 13, the governor said that he thinks the state may be the “most transparent in state history.”

And he could be right, at least as it applies to the disclosure of his documents.

In 2013, the Washington Supreme Court ruled in Freedom Foundation v. Gregoire that the governor has a right to use executive privilege, meaning that Governor’s Office documents pertaining to decision-making on legislation could be withheld from the public if the governor chose to do so.

However, Inslee has not invoked executive privilege in the 10 years he has been in office.

Additionally, Inslee worked with Rep. Gerry Pollet, D-Seattle, on legislation in 2013 that would have statutorily removed that exemption for the governor altogether, although the law never came to fruition.

But Pollet pointed out that some of the governor’s agencies have not been the best about records transparency.

In April, a Thurston County Superior Court judge ruled against OFM, an office within the Governor’s Office, “for refusing to hand over initial offers in collective bargaining negotiations even after the parties had signed agreements.”

In an email to McClatchy and Crosscut, a spokesperson for OFM said that they are “awaiting the final order in this case, which we anticipate will be signed April 28. Once we have the final order, we will review it to determine our next steps.”

The Attorney General also has come under scrutiny for withholding records by Joan Mell, an attorney and board member for the Washington Coalition for Open Government, who wrote a scathing opinion column.

Brionna Aho, a spokesperson for the AG’s office, said Mell wasn’t happy with Ferguson’s office because she had previously lost a lawsuit when representing the Northwest Detention Center, a private federal prison.

Aho also claimed that Ferguson has expressed solidarity for public records transparency by supporting Inslee’s choice not to invoke executive privilege.

Future leaders

It’s difficult to say what will happen after Inslee leaves office, and whether or not a future governor will invoke executive privilege. Rumors have swirled about a few potential candidates for the 2024 election, including some who have been caught up in public records lawsuits this year.

“I’d like to think that the Democratic Party writ large stands for openness…,” Pollet told McClatchy and Crosscut. “They’re the party of the Freedom of Information Act, and the party of opening up public decisions.

“It’s an important question for the next governor, and frankly I’d love to see the next governor say ‘I’m going to have an open government ombud,’ who’s an actual advocate for openness in government. Because the governor can use their position to really advance openness.”