WA lawmakers are keeping secrets from the people again

State lawmakers so desperately want to keep secrets from the public that they’re gaslighting Washingtonians about what the plain language of the state Constitution says.

The Washington Coalition for Open Government discovered lawmakers’ most recent chicanery when stories of rejected public records requests started to filter in. Some lawmakers and their staffs are refusing to provide records to which the public is entitled based on something they are calling “legislative privilege.” (Full disclosure: Editorial Page Editor Kate Riley is a member of the WashCOG board.)

Where is this “legislative privilege” in the law? Nowhere. The Public Records Act doesn’t grant such an exemption to withhold records. Lawmakers have manufactured it with a tortured reading of Article II, Section 17 of the state Constitution, which reads, “Freedom of Debate. No member of the Legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

That’s a sensible provision on its own, one modeled on language in the U.S. Constitution. Lawmakers need the ability to debate without fear of being hauled into court for libel or something else. But it protects debate, not emails, text messages, white papers nor any other public record. In fact, and this is significant: It doesn’t even allow the debate to be secret, just immune from being the grounds for a court action.

Therein lies the gaslighting. Lawmakers didn’t formally announce this radical reinterpretation of the state Constitution. They just started invoking it as if it had been there all along. They want to trick Washingtonians into believing that this is nothing unusual.

But it is unusual. It’s insulting, exasperating and profoundly troubling. So far, the privilege has been invoked on the advice of attorneys of the House and Senate Democratic caucuses.

On Thursday at a media briefing, Speaker of the House Laurie Jinkins said she’s never invoked the privilege herself but defended the right of individual lawmakers to do so to keep records private.

Oh, boy. Once more, with feeling: The clause cited is not to keep the records private, just to immunize lawmakers in the context of court action.

Lawmakers learned the hard way over the past few years that, indeed, they are subject to the Public Records Act. That law says that the people have a right to know what the government gets up to with only very narrow, well-defined exemptions. That transparency is the foundation of accountability and an informed electorate.

The law lays it out clearly, “The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”

Some lawmakers think that they are special, though, so special. They think the law doesn’t apply to them, that they get to decide what is good for the people to know. So they manufacture loopholes or flat out ignore the law until compelled to follow it.

That’s what happened in 2018 when they passed a law to exempt the Legislature from the Public Records Act. After public outcry including more than 20,000 calls and emails to Gov. Jay Inslee, the governor vetoed it. Then in 2019, the state Supreme Court definitively ruled that individual lawmakers are subject to the Public Records Act. Case closed.

But the desire to conduct business in the shadows is strong in Olympia, so here we are again.

What do lawmakers fear? A few embarrassing headlines?

Here’s a tip: Don’t do embarrassing things in office. Or just don’t sweat it. It’s not as if incumbents seeking reelection lose very often, which is a whole other problem.

Lawmakers’ new secrecy gambit will only end one way, but there are two paths to get there. They can voluntarily stop invoking this ridiculous reinterpretation of the Constitution or they can fight a losing battle in the courts.

Alas, given their track record, they’ll likely choose the latter, depriving Washingtonians of accountability and costing them legal fees in the meantime.