Frequently Asked Questions
SB 6617 — The Legislative Public Records Act

Washington state legislators have heard many concerns regarding ESB 6617, the Legislative Public Records Act. We are committed to answering your questions, addressing your concerns and if this bill does not work in practice, we are dedicated to finding solutions that do.

Here are answers to frequently asked questions about the bill.

Q. How did we get here?

Since the Public Records Act passed in 1972, the Legislature has been consistently advised that the Legislature is not subject to the full extent of the Public Records Act because it is an independent branch of government, like the courts.

About a year ago, a number of media organizations sued, arguing the Public Records Act should be interpreted to cover the Legislature. Just over four weeks ago, a Thurston County Superior Court judge ruled that although the Legislature as a whole is not an “agency” subject to the Public Records Act, individual legislators’ offices are “agencies.” The Legislature appealed to the Supreme Court, which has not yet decided whether to review the order.

As a result, the Legislature has decided to adopt the Legislative Public Records Act to open up additional records traditionally kept confidential from the public but also protect those vital to legislative functionality and constituent privacy.

Q. Why was the bill moved through the process so quickly, and why didn’t you hold a public hearing?

We have heard from many that the process for this legislation did not provide enough time for public input and full consideration from the Legislature. Judge Lanese issued his ruling on Jan. 19 — 10 days into the 60-day 2018 Legislative Session. If the ruling had come in October, the Legislature could have followed the standard process. Before introducing a bipartisan, bicameral bill, the Legislature had to review the decision in full, consider a response, and review and revise several drafts of the legislation. The process of writing this bill, and reaching bipartisan and bicameral agreement on it took many hours over a full month.

Ultimately, the bill was introduced during the last week for the Senate and House to consider the other chamber’s bills. A regular hearing could not be scheduled without sacrificing bills already scheduled for hearings and executive action. Plus, because the bill is bicameral, it was important that there be a joint hearing of both Senate and House state government committees. House Rules do not allow for joint hearings, so it had to be referred to as a “joint work session,” where public testimony was taken. That is not typical of a “work session,” but it was the Legislature’s only practical avenue at that point to ensure the public could hear the bill, ask questions, and comment.

In any case, this law — like any other — can be amended at any time. Indeed, as the new rules go into practice, we will remain open to looking at additional ways to increase transparency without violating constituent privacy or preventing the Legislature from functioning.

Q. Why did the Legislature pass this bill?

Judge Lanese’s order would have had severe and unintended consequences for the ability of the Legislature to function and for the confidentiality of private personal information of Washingtonians across our state.

First, let’s look at constituent privacy. Constituents regularly reach out to their legislators with emails containing personal information, requesting help on issues ranging from government benefits to sensitive personal or medical matters, including mental health. This highly sensitive personal information is shared under the expectation of privacy. It is paramount that the Legislature act to prevent its public release. Anything less would have been irresponsible and a violation of Washingtonians’ right to keep personal information private.

If constituents knew their correspondence – even with names redacted – could wind up on the front page of The Seattle Times, it would have a chilling effect on the First Amendment right of Washingtonians to petition the government for assistance with whatever issue is facing them or a family member.

Now, let’s consider legislative function. Rather than say the Legislature as a whole is subject to the Public Records Act, Judge Lanese’s order creates 147 individual “state agencies,” each required to have an employee physically present and available up to 30 hours per week to consider public records requests alone, and allow for public viewing.

This is not how the Legislature is organized or staffed, which makes complying with the PRA unworkable. For example, legislators do not hire or pay for their own staff — and the vast majority of legislators have only one full-time staffer assigned to their office. Legislators do not make their own individual rules and laws, which is required for state agencies under the PRA. Plus, legislators’ offices receive tens of thousands of emails in a single legislative session from constituents alone. They do not have the capacity to take on this work and still perform their primary legislative responsibilities.

These administrative additions would render the Legislature unable to function in a timely manner and create substantial new costs to taxpayers. This is neither practical nor financially feasible.

Both the court and the state Attorney General’s Office have recommended we change the law, and that is exactly what we are doing with this bill.

Q. What records will become public?

While protecting citizens’ privacy rights, SB 6617 would open other traditionally confidential records to the public and press, including:

  • Legislators’ correspondence on legislative business to and from persons outside the legislature – most significantly, with lobbyists. That includes email and text messages. To protect individual privacy, this does not include constituent communications;
  • Legislators’ calendars, including the names of individuals and organizations with whom they’ve met and the dates of the meetings; and
  • Final decisions of investigations and disciplinary proceedings by the Facilities and Operations and Executive Rules Committees of the Senate and House, respectively.
  • In addition, legislators are free to release additional records as long as they do not violate a constituent’s privacy.

Q. The media believes the Legislature cannot and should not exempt itself from judicial review, because all other state agencies have judicial review of denials. Are they right?

The Legislature is a separate branch of government with its own unique issues related to public records. Unlike state agencies, which are under the Executive Branch, the Legislature can regulate itself internally, except on constitutional issues.

Review of public records denials will go through the Facilities and Operations and Executive Rules committees of the Senate and House. These are the same committees responsible for investigating and hearing disciplinary complaints made against legislators.

By comparison, the judiciary has its own internal disclosure rules, and reviews its own denials. It does not have its denials of records requests reviewed by another branch of government.