State agency had its own ‘legislative privilege’ policy in place to shield certain records
While two Thurston County Superior Court judges recently ruled that legislators do have the privilege to withhold some records, newly obtained documents show they are not the only state body with policies for keeping documents from the public eye.
At least one of the governor’s executive agencies, the Department of Revenue, had its own policy on asserting legislative privilege in place, according to records obtained by McClatchy and Crosscut.
The news outlets teamed up for this report to show how the privilege was extended to another branch of government before courts had issued a ruling on whether or not lawmakers were entitled to the exemption.
DOR has since rescinded the legislative privilege policy after inquiries from McClatchy and Crosscut, and after the most recent ruling in favor of legislative privilege.
The email between branches
In a 2022 email from Monica Holloway, a management analyst for the state Department of Revenue (DOR), to Ohad Lowy, counsel for the Washington House of Representatives, Holloway told Lowy that DOR had 42 responsive documents ready for review that contained “possible legislative privilege.”
“Let me know if you would like the Department to assert legislative privilege on the House’s behalf with respect to any of these documents,” Holloway told Lowy.
In a later email on the same thread, Lowy confirmed with Cathy Hoover, senior leadership counsel for the House Republican Caucus, that DOR sent emails to the Legislature to be reviewed to see if information should be redacted. The rest of the email body was fully redacted under “attorney-client” privilege.
The emails were in response to a public records request filed by Pam Lewison shortly after Gov. Jay Inslee signed the capital gains tax into law in 2021. Lewison is the agriculture policy research director for the Washington Policy Center.
DOR is the state’s primary tax agency tasked with administering about 60 categories of taxes to fund things such as education, health care and other services.
Lawmakers have claimed that legislative privilege is used to withhold deliberation on bills during the legislative session, but the emails between DOR and the Legislature were exchanged nearly a year after the bill was signed into law.
In an interview, Lewison said she filed the request to learn how the capital gains law might apply to people selling their farms to use as a retirement asset. She didn’t know DOR had sent her records to another branch of government for redaction until she was contacted by a reporter.
“I would hope that they would recognize and realize that as members of the public, whomever they may be, they have a right to know what kind of policies are being enacted,” she said. “And be able to ask questions.”
DOR policy on ‘Legislative Privilege’
Mikhail Carpenter, the communications manager for DOR, told McClatchy and Crosscut in an email that DOR’s policy relating to the privilege had been adopted sometime in 2018 after receiving “legal guidance.”
“The intent of that section was to afford some protection for the deliberative process with bill drafts and potential policy impacts drafted by Revenue on behalf of the legislature,” Carpenter said. “Specifically, the policy aimed to prevent a situation where a competing party/interest received work product before a requesting legislator had time to fully consider the work product themselves.”
He said the decision to develop the policy was “internally driven” and that there was not a specific incident that raised the issue of legislative privilege policies within the DOR. Instead, the issues were raised during conversations with legislative counsels.
“There were questions both internally and externally about whether we could withhold bill drafts and associated materials that we develop in conjunction with legislators and the agency sought legal advice,” Carpenter said. “The policy that was drafted was based on that advice. There was no outside direction involving this decision, I want to be clear on that.”
Carpenter forwarded McClatchy and Crosscut a copy of the policy the agency adopted, which contained a section called “Invoking Legislative Privilege.”
“Revenue and its employees must comply with the requirements of the Public Records Act (PRA), while also recognizing the Legislature’s constitutional right to invoke legislative privilege,” the memo reads.
According to the document, written confirmation from a “legislator, or staff counsel representing the legislator or legislative body” must first be obtained for DOR to invoke the privilege. Legislators, staff counsel or the body can then state that they want DOR to withhold or redact records from being released under the PRA by asserting their “right” to legislative privilege.
“Revenue’s response denying a request for records, under the Public Records Act, based on the legislative privilege, must state that Revenue is asserting the privilege at the Legislature’s or legislator’s request,” the document continued. “If a requester under the Public Records Act files a court action challenging a claim of legislative privilege asserted by Revenue in response to a records request, Revenue will request in writing for the Legislature to intervene and defend the claim of legislative privilege or support Revenue in defining the claim of legislative privilege.”
Carpenter said that while the emails in question reflect the policy, the agency has “never asserted legislative privilege,” nor have they “withheld records on that basis.”
When asked if the legislative privilege policy was unique to DOR, Mike Faulk, deputy communications director for the governor’s office, said that as far as they were aware, DOR previously had a practice to address confidential records maintained by the agency but were not aware of any other agency with the same circumstances.
Executive vs. Legislative Privilege
In 2013, the Washington state Supreme Court ruled 8-1 that the governor can claim “executive privilege” to justify withholding documents under the Public Records Act in a case called Freedom Foundation vs. Gregoire.
The ruling came after former Gov. Christine Gregoire was sued by the Freedom Foundation in 2011 for not disclosing documents in a public records request, citing executive privilege. Other organizations such as the American Civil Liberties Union of Washington supported the Freedom Foundation in the lawsuit.
Although Gregoire was no longer in office by the time the ruling came down, current Democratic Gov. Jay Inslee, who assumed office in 2013, said he did “not intend to exercise the executive-privilege exemption unless it was explicitly provided by the Legislature or a vote of the people,” according to reporting from the Seattle Times.
Since then, the governor has maintained that his office has never invoked executive privilege.
In 2017, state lawmakers were sued by the Associated Press and other news outlets for withholding records under the argument that they were not subject to the Washington Public Records Act, which passed as a ballot initiative in 1972. The Washington State Supreme Court eventually ruled 7-2 in favor of the news outlets, and clarified that state lawmakers were not exempt from the state PRA.
But earlier this year, McClatchy first reported that state lawmakers had been silently using the then-legally-untested concept of legislative privilege to withhold records from the public. Since then, joint reporting from McClatchy and Crosscut showed how the Legislature has spent more than 15 years attempting to consolidate its power and keep secrets from citizens by invoking legislative privilege.
Responses to McClatchy and Crosscut inquiries
Associate Professor David Cuillier at the University of Arizona School of Journalism said in an interview that it “clearly appears” DOR came up with their own legislative privilege policy “when there was this myth going around that the Legislature was exempt from public records laws.”
Cuillier said that he believes the agencies should have changed their policies when the Supreme Court decision came down.
“It’s funny how the reasoning for secrecy shifts and changes, depending on the timing and the nature of who’s asking,” he said. “If there’s something in a record that has a legitimate exemption to be redacted, they should make that case. And that’s fine. In fact, really, that’s how these laws are meant to work anyway — any government record should be released to the public, unless there’s a specific exemption and a good reason why it shouldn’t.”
Cuillier added that the secrecy covering other governmental bodies around the country is “like an avalanche.”
Carpenter said DOR suspended the use of its policy Nov. 20 and that the agency “will not be invoking privilege on behalf of another party.”
“Because the policy is based on guidance that predates recent court cases regarding this topic, it no longer aligns with best practices,” Carpenter said. “We will be reviewing and updating it immediately.”
Bernard Dean, Chief Clerk for the Washington House of Representatives, said in an email that he was unaware of any instances where a lawmaker asserted privilege on DOR documents, and that “discussions around legislative privilege in the Legislature pre-date any communications that may have taken place with the Department of Revenue in 2017.”
Faulk was asked if he believes that the executive branch agencies and departments can use legislative privilege to redact communications in their possession.
“Executive branch agencies do not have authority to exert legislative privilege. DOR understands this and suspended their policy,” he responded.
Faulk also reiterated that “from day one” executive privilege has not been exercised by the governor’s office as it pertains to public records.
“We are proud of our record on these matters and have been honored to be recognized in the past by the Washington Coalition for Open Government and the Washington Newspaper Publishers Association for these practices,” he noted.
This report was produced in collaboration with Crosscut, an independent, reader-supported, nonprofit news site.
