(The Center Square) – The court battle in Washington over lawmakers citing legislative privilege to avoid providing public records was front and center in a State Court of Appeals hearing Thursday in Tacoma.
As reported by The Center Square, Thurston County Superior Court Judge Anne Egeler issued a November 2023 decision that said state lawmakers are entitled to “legislative privilege” to shield their records from public disclosure.
That case was brought by open records advocate Jamie Nixon and the Washington Coalition for Open Government (WashCOG) and their appeal will be heard next month.
Thursday’s appeal was another open government advocate named Arthur West who brought a very similar challenge.
“Attorneys for the Legislature want the courts to find a broader interpretation of Article II, Section 17 in the state Constitution. They contend this provision creates an absolute ‘legislative privilege’ of confidentiality for the Legislature’s internal deliberations. The Public Records Act, they argue, cannot override this ‘privilege,’ ” wrote WashCOG Secretary George Erb via email to The Center Square.
During Thursday’s arguments, attorneys for the state argued that other state’s protect legislative documents and correspondence to “create space” where lawmakers can consider issues before they are made public.
West, as well as Nixon and WashCOG, contend the lower courts have erred and the state Constitution does not support lawmakers asserting “legislative privilege.”
It’s “a serious threat to open government,” Erb wrote. “If the Legislature succeeds, all manner of governing bodies statewide may try to claim the secrecy “privilege” for themselves.”
In a Friday interview with The Center Square, Erb elaborated on Thursday’s hearing as he was present in the courtroom.
“What we were seeing in court yesterday was a dramatically and starkly different idea about how the Legislature should operate. And attorneys for the legislature are basically arguing that the legislators should be able to deliberate in private. To debate and gather information; talk among themselves … think about it, and then when they think the time is right, then take their finished work and make it public,” said Erb.
He said the other argument that they support points to the fact the Legislature is the people’s house.
“It’s a democratic republic. The people and the press should be able to see how that work is done, and who’s doing it, and who’s talking to whom, and how the decisions were made,” he said.
Erb wouldn’t speculate based on the line of questioning from the three-judge panel Thursday how the judges will rule, but said he does not expect a decision until after WashCOG’s and Nixon’s case are heard in late January.
“Our take on it is that if legislative privilege prevails, how is the public and the press going to know how their legislature is working? How is it arriving at decisions?” said Erb. “It will be harder for us to catch corruption, you know, self-dealing, bribery, dodgy horse trading. It’s just going to be harder to monitor if this is allowed to take effect.”
