Washington State Capitol

(Elaine Thompson / AP)

WASHINGTON - The Washington State Supreme Court is set to hear arguments by a media coalition, led by The Associated Press, who say access to records of state lawmakers should be public record.

On Tuesday, the Supreme Court will hear arguments in a case which is set to decide whether legislators in the state are susceptible to to the same disclosure rules that pertain to other elected officials under the Public Records Act, which was approved by an initiative by voters in 1972.

Tuesday's hearing is the highest point of a case which began in September 2017 following a lawsuit that was filed by a media coalition, led by The Associated Press, that accused lawmakers of violating the law by not releasing emails, daily schedules and reports of sexual harassment.

A Thurston County Superior Court Judge ruled last January that while legislators were not subject not to the Public Records Act, the statue was evident that the lawmakers' individual offices were incorporated.

Lawmakers quickly tried to get around the ruling, passing legislation less than two days later which in theory exempted them from the initiative. The bill would have permitted extra limited legislative disclosure for tasks such as daily calendars and communication with lobbyists. Governor Jay Inslee vetoed the bill after much opposition by the public.

Lawmakers also introduced legislation that made legislators subject to the Public Records Act, but also included various exceptions C such as permanently exempting records pertaining to staff inspections to drafts of legislation. The bill also excluded amendments or records of deliberations involving lawmakers.

The bill went nowhere after executives in the newspaper industry and media lobbyists expressed outcry and disapproval during a public hearing in the legislature.

Legislators have made numerous changes going back decades, with lawyers for both chambers citing a revision in 1995 in their denials to reporters who are seeking records. Both the House and Senate release limited records, such as travel, payroll records and reports.

Attorneys for the Legislature have insisted the changes which took place in 2005 and 2007 — when the language and definitions in the Public Records Act were designated into a statute that is distinct from the campaign-finance portions of the original bill, conclusively removed lawmakers from the disclosure requirements.

“The trial court erred in failing to give significance to the amendments to the PRA, which created a standalone definition of ‘agency’ that does not include legislators, and which created a specific set of disclosure requirements for the legislative branch,” the Legislature’s attorneys wrote in a court brief.

Michele Earl-Hubbard, an attorney representing a coalition of media groups led by The Associated Press, wrote in a court brief that there is no legislative history, language in the amendments themselves, or even any public mention that the amendments were meant to remove lawmakers from the Public Records Act.

“And it is reasonable that IF such action was the intent, that there would have been some hint of that fact, some discussion of it, before, during, and after it was passed,” she wrote. “But there is none. This is because the Amendments were never intended to change the scope of the PRA or the reach of the law to individual legislators or the many departments, offices, and subparts of the Legislature.”

Typically the legislature would be represented by the state Attorney General. Lawmakers decided to use two private law firms in this case, with costs right now totaling over $300,000.

The attorney general’s office filed a brief before the high court similar to one filed before the superior court, stating that each lawmaker is fully subject to the public disclosure law, but that the House and Senate are subject in a more limited manner, with the law specifically defining which records must be made available for release by the House and Senate through the offices of the chief clerk and the secretary of the Senate.

“The PRA is explicit: the Act covers every state office, department, division, bureau, board, commission, or other state agency,” the attorney general’s office wrote, noting that individual state employees are also covered under the law as representatives of the agencies they work for. “Individual legislators and their offices plainly fall within this broad coverage.”

Twenty news and open government groups signed on to briefs in support of the media coalition, including the Washington Coalition for Open Government, Reporters Committee for Freedom of the Press, Reporters Without Borders and the Society of Professional Journalists.

Besides AP, the groups involved in the lawsuit are: public radio’s Northwest News Network, KING-TV, KIRO 7, Allied Daily Newspapers of Washington, The Spokesman-Review, the Washington Newspaper Publishers Association, Sound Publishing, Tacoma News Inc. and The Seattle Times.

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