As many of my constituents now know, the State House and Senate passed Senate Bill 6617 this past Friday, which states that “the legislature intends to establish records disclosure obligations that preserve the independent deliberation of the people’s representatives while providing access to legislative public records.”
Under Senate Bill 6617, I will be disclosing even more substantial information about the work I do as your state representative. The bill defines what information must be disclosed upon a public disclosure request.
I voted in support of Senate bill 6617, which passed the Senate on a 41-7 vote and the House on an 83-14 vote. Much about the process regarding this bill was flawed, including inadequate public hearings and lack of public debate.
No doubt you have probably seen universal condemnation from members of the press in recent days. Under most circumstances we can trust the press to be fair, objective observers who tell stories for the public good. However, in this case, they are anything but objective and they are openly admitting as much.
— Drew Mikkelsen (@drewmikkelsenk5) February 24, 2018
Why has this bill unified the media? Because they are the joint plaintiffs in a lawsuit against the legislative branch. They have a vested interest in winning their lawsuit. They are having their day in court, which is perfectly within their rights. But remember they are the plaintiffs. And every story has (at least) two sides.
Here is my side of the story.
A county judge ruled in the media’s favor about one month ago, but what you aren’t reading in many press accounts lately is that decision was only the FIRST decision in the case, not the last. This fact is noted by the plaintiff’s attorney:
“Michele Earl-Hubbard, the attorney for the media coalition, noted the ruling was just a first step, ‘but it’s a huge first step.'” AP, January 20, 2018.
The Legislature has filed an appeal and assuming that appeal makes its way through the legal process, I’m confident the ruling would be overturned.
“’Legally, the clients have the better position and I’m confident that on appeal the legal position the state Legislature has taken and the individuals legislators have taken will be affirmed by an appellate court,’ said attorney Paul Lawrence who represents the Legislature.” – Everett Herald, January 20, 2018.
Why would it be overturned? Because it is a deeply-flawed ruling that doesn’t recognize how the Legislature is structured.
In that ruling, the judge stated that although the Legislature should not be defined as a state agency, individual legislators and their offices should be defined as their own agency and therefore individual legislators should be subject to the Public Records Act and liable for any non-compliance.
It should also be noted that the judge invited the Legislature to change the law if it disagreed with the ruling.
“The judge added that if lawmakers don’t like the law as it stands, they can change it.
‘If the Legislature disagrees, it can say something different by amending the law,'” he wrote. – The News Tribune, January 19, 2018.
Individual lawmakers ARE NOT 147 separate state agencies, so we took the judge’s advice and changed the law.
The Public Records Act of 1972 has been a cornerstone of how the people hold Washington state’s governing bodies accountable. Since it was established, the act has been implemented across state and local agencies.
The judicial branch took the position some years ago that it was not subject to the Public Records Act – since the judiciary is also an independent branch of government – and adopted its own judicial public records disclosure policies. Just like the judicial branch, the Legislature – following two decades of legal advice from both Republican and Democratic Attorneys General – believed it was also not subject to disclosure requirements under the Public Records Act, which precipitated the media lawsuit against the state Legislature.
I believe that the Legislature should disclose information to individuals and organizations seeking information on how we legislators do our work. I also believe that disclosure requests should be managed by the House and Senate as institutions of a separate branch of government.
And that the responsibility and liability of any failure to comply with disclosure laws should attach to the institution – not to the individuals serving in or employed by the institution.
I served for five years as a Port Commissioner. As was the case for my colleagues at other ports or in city and county governments, the Port of Seattle as an institution was legally bound to comply with the state’s Public Records Act.
All of my correspondence, meetings, emails, and other communications were subjected to public disclosure and were disclosed to the public during my tenure. But I was not personally liable for any non-compliance. That liability resided with the institution in which I served.
It would seem to me to be a distortion of our State constitution to define each legislator as its own public disclosure agency and make each legislative office – all 147 of us – personally responsible for managing the public disclosure requests to our specific offices.
The bureaucracies that would result from this ruling would cost an obscene amount of money and would paralyze the ability of legislators to properly represent their constituents. But most chilling would be the effect on current or future state legislators. We are citizen legislators. Most of my colleagues have other employment when not in session.
We have families, own small businesses, volunteer in our communities, and work year-round to meet with constituents and address constituent needs. The potential personal financial risks of making a mistake would be overwhelming.
The Legislature has filed an appeal to the county judge’s ruling, and I believe the Legislature will win that appeal.
If the Legislature wins that appeal, that means we likely go back to the old ways, which means almost nothing would be disclosed.
But that’s not what I want. That’s not what the press wants. And that’s not in the public’s best interest.
SB 6617 is a fair solution that opens up far more records compared to the practices of the last several decades. I look forward to implementing Senate Bill 6617 if it becomes law and my door is always open.