New lawsuit alleges WA state Senators were ‘silently withholding’ public records
A new lawsuit filed in Thurston County Superior Court alleges that Washington state Senators have been “silently withholding” public records.
The lawsuit, filed by open government advocate Arthur West of Olympia, stems from the receipt of new records provided to West, McClatchy and others on Thursday, July 20, that were not previously turned over in public records requests closed out in February. Those requests asked for all redacted and unredacted records withheld, or previously withheld, under “legislative privilege” by state lawmakers.
“Defendants sent plaintiff the appended letter, with attachments, demonstrating that the closure of the request had been in error, and that the defendants had silently withheld records,” West’s suit noted.
Furthermore, “all of the newly disclosed records were records withheld under a claim of legislative privilege from January of 2022 to present.”
McClatchy first reported in January on state lawmakers’ use of legislative privilege, a legally untested concept under which lawmakers justify the withholding of documents from public review.
In 2018, a Thurston County judge ruled that the individual offices of lawmakers are considered separate agencies under the Public Records Act. In 2019 the Washington State Supreme Court affirmed that ruling. Public records advocates contend that means the Public Records Act applies to them the same way it does to state agencies.
But, as West’s suit continues, “due to the recalcitrance of the defendants and the mechanics of the legislature’s records response, it is difficult to determine exactly which entities or agencies actually are responsible for withholding disclosure of records.”
West’s suit asks for a ruling to find the defendants in violation of the Public Records Act, as well as costs from each office that silently withheld the public records.
Eight current and former state Senators’ records were included in the recent release of records, including both Republicans and Democrats.
The records returned were from the offices of former state Sen. Sharon Brown, former Sen. Tim Sheldon, current Sen. Phil Fortunato, R-Auburn, and current Sen. Shelly Short, R-Addy.
Additionally, text messages were returned from the offices of Sen. Patty Kuderer, D-Bellevue, Sen. Bob Hasegawa, D-Seattle, Sen. Emily Randall, D-Bremerton, and former Sen. Reuven Carlyle.
When McClatchy asked why lawmakers initially invoked the privilege but are waiving it now, Kimberly Wirtz, communications director for the Washington State Senate Republican Caucus, said that “the Senators were advised that the redacted material was legislatively privileged based on the Washington State Constitution.”
“They chose to exercise this privilege when the material was provided in response to a previous public records request,” Wirtz explained. “When they were recently asked about the material, they decided to waive the privilege on it, allowing it to be released unredacted.”
In a 2018 case called West v. City of Tacoma, it notes that “silent withholding is not about the production of documents.”
“It is about the disclosure of documents. Sanders v. State distinguished these two concepts by stating, “Records are either ‘disclosed’ or ‘not disclosed.’ A record is disclosed if its existence is revealed to the requester in response to a PRA request, regardless of whether it is produced. ... Disclosed records are either ‘produced’ (made available for inspection and copying) or ‘withheld’ (not produced).”
West’s case is scheduled for a status conference in August.
West also filed a lawsuit in January challenging the Washington State Legislature’s use of “legislative privilege” to withhold public records. That case has its first hearing on Sept. 29.
