As Yogi Berra would say, it’s déjà vu all over again.
A legislature has rushed through a bill curtailing the state’s public records act, waiving rules to minimize public comment and present the governor with a bill that has enough votes to override any veto, and members of the public are as mad as hell.
While that sounds like Utah’s infamous House Bill 477, which gutted the state’s Government Records Access and Management Act, this scenario actually played out in Washington state last week.
In response to a Thurston County Superior Court judge’s ruling that lawmakers are subject to the state’s Public Records Act, Senate Bill 6617 was introduced to nullify it.
The bill, sponsored by Democratic Senate Majority Leader Sharon Nelson and Republican Senate Minority Leader Mark Schoesler, the bill declares that the Legislature is not subject to the public records law.
While the bill does make some records public, such as lawmakers’ calendars and final actions in disciplinary procedures, it takes giant leaps backwards in transparency.
The bill renders the court battle over lawmakers’ records moot because it is retroactive back to 1889 when Washington became a state.
But wait, that’s not all.
If someone challenges a record denial by either the Senate Secretary or the Clerk of the House, the appeal can only be heard by one of two legislative committees, and the committee’s ruling is final and cannot be challenged in court.
The bill takes effect as soon as it becomes law. That negates any attempt to overturn it at the ballot box.
If you think the bill is bad, the way it was passed in the Legislature was worse.
The bill was introduced late in the session, on Feb, 21, and was put up for a Senate vote without going through the usual committee process.
Lawmakers did agree to have a “work session” where stakeholders such as the Allied Daily Newspapers of Washington could weigh in against the bill, but that was not enough to stop this legislative juggernaut.
The bill passed 41-7 in the Senate on Feb. 23, and minutes later the House of Representatives voted 83-14 in favor of it.
Lawmakers defended the bill with pleas that they were protecting their constituents from having their tales of personal woes and problems exposed by prying reporters who request lawmakers email and correspondence.
Another argument that was brought up was that responding to public records requests would be too onerous for lawmakers and their support staff.
Plus, they argued that the state’s judicial branch is exempt from the Public Records Act, so why shouldn’t they.
But as Toby Nixon, president of the Washington Coalition for Open Government, and Allied Daily Newspapers’ Executive Director Rowland Thompson point out, the judiciary’s exemption was worked out over a course of years, with open-government advocates at the table. And the system they came up with provides an independent review of any record denial.
The bill is now before Gov. Jay Inslee, who has until Thursday to either sign the bill, veto it or allow it to become law without his signature.
And Inslee’s getting a lot of calls to veto the bill. The Seattle Times reviewed more than 540 constituent emails it requested from Inslee’s office, and found that there were none in support of the bill. And several papers in the state, including the Times, the Yakima Herald-Republic, the Bellingham Herald and others, ran front-page editorials demanding Inslee veto the bill.
While Inslee is supportive of transparency in government, he has hinted that vetoing a bill supported by a veto-proof majority, would be futile.
No, it wouldn’t. It could stop this bill in its tracks, or at least make legislators take full responsibility for thumbing their noses at the public’s right to know.
Sure, the bill’s got more than enough votes to overturn a veto, but when the moment of truth comes, some lawmakers may question the justice of their cause when faced with overriding a veto that the public fully supports in an election year. Politicians know better than most people that discretion is the better part of valor.
And even if lawmakers stick to their guns and override the veto, Inslee will have shown the people that he values transparency, even when it is not convenient. And by doing so, he would force the Legislature to take full ownership of the bill. They were the ones who approved it, and they were the ones who made it become law, even though the public made it perfectly clear that they value transparency, just as they did when they enacted the Public Records Act through a referendum in the 1970s.
Donald W. Meyers, a reporter/multimedia journalist at the Yakima (Wash.) Herald-Republic, is a member of SPJ’s Freedom of Information Committee and is SPJ’s Region 10 Director.
