WA Attorney General’s Office defends use of ‘legislative privilege’ by state lawmakers
The Washington state Attorney General’s Office is contending that state lawmakers can refuse to provide certain records to the public under a legislative privilege exemption, court filings from Monday show.
“Defendants are immune from being required to produce certain records under Article II, Section 17 of the Washington Constitution,” the AG’s Office wrote Monday in response to a lawsuit filed in January against state legislators.
That lawsuit was filed in Thurston County Superior Court by open government activist Arthur West, who recently settled a public records lawsuit with the Washington State Redistricting Commission for $40,000.
Court filings show that West is filing for declaratory and injunctive relief regarding whether or not lawmakers can claim legislative privilege to withhold records and shield them from the state’s Public Records Act.
The lawsuit aims to find out whether the constitution gives lawmakers the authority to exempt themselves from releasing certain records, with West asserting that legislative privilege is “an issue of major public importance, and an actual dispute between parties having genuinely opposing and substantial interests.”
Article 2, Section 17 of the Washington State Constitution 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 public records, such as emails and texts, held by legislators.
Public records released by House and Senate legislative bodies also show that those documents are being withheld citing Freedom Foundation v. Gregoire, a ruling by the Washington state Supreme Court that said governors of the state “could assert executive privilege to justify withholding documents that would otherwise be disclosable under the Public Records Act.”
That case only explicitly addressed executive privilege, and Gov. Jay Inslee has vowed not to use the exemption to withhold public records.
Court filings also show that the AG’s Office is asserting immunity of civil process for state lawmakers during the legislative session, something that is written in the Washington State Constitution. This means that lawmakers cannot be served until after the legislative session adjourns on April 23.
In January, McClatchy first reported that lawmakers were using legislative privilege to shield their records from release under the Public Records Act.
Public records are still being withheld under the exemption after McClatchy requested unredacted copies of those files.
The Washington Coalition for Open Government responded in an email to McClatchy regarding the move by the state AG’s office.
“WashCOG is disappointed that the state Attorney General’s Office has apparently agreed with the state Legislature’s argument that it can declare records secret whenever it wants by citing ‘legislative privilege,’” WashCOG said in the statement. “This is a new interpretation of an old provision in the state Constitution. A privilege allowing legislators to withhold records at will is unsupported by Washington state’s statutes, case law and Constitution.
“We’re troubled that Washington state’s legislative and executive branches are now arguing that lawmakers can hide more of their work from the public by citing a new privilege that was unrecognized and unused until last year, when lawmakers quietly started claiming it without any public discussion,” WashCOG added.
