Infringing on the Public's Right to Know

In 2017, a coalition of news agencies in Washington state filed a lawsuit against the Washington State Legislature and its leadership over conflicting interpretations of the state’s public records law. The underlying matter involved requests for documents—emails, calendar entries, text messages—related to claims of sexual harassment within the legislature.

The lawsuit addresses a 1971 statute and 1972 voter-approved ballot initiative favoring “full access to public records so as to assure continuing public confidence in fairness of elections and governmental processes.” A 1995 legislative amendment further defined “state office” and the types of records included under the act.

Generally, public records laws are intended to ensure access to members of the general public to information relating to federal and local government business. The Open Public Meetings Act of 1971 outlines the requirements for disclosure of records relating to public agencies, including “all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof” representing the people of the state. The law also circumscribes activities, documents and information that is not subject to public scrutiny, including personal matters of public representatives.

Seeking to circumvent the pending litigation and overturn the trial court’s order finding that legislators are subject to disclosure, the legislature sought to enact legislation modifying the open records law during the final days of its 2018 session. For such cases, “On a Wednesday afternoon, they introduced a bill that would have overturned the court decision and would have sealed the Washington legislature from the public records law,” says Seattle media attorney Judy Endejan. “They introduced it, didn’t have a public hearing, then passed it on Friday—all within less than a 48-hour period.”

The bill appeared veto-proof due to the large majority of legislators voting for its passage. But media and public outcry led to the unusual outcome of legislators stating they would not pursue an override and requesting a veto from the governor. “The public went crazy, the governor’s office got like 22,000 phone calls asking him to veto it. Because of all the public backlash, the legislature realized it sort of got caught with its pants down.”

What does all this mean for individual residents of Washington?

According to Endejan, the public needs to be watchful. “Bit by bit, states are making it harder for citizens and the press to gain access to public records. That’s a huge concern of mine.

“It might be a small thing, like they’ll add a couple more exemptions, or they’ll add something that will make the requester have to pay more. This is harmful to democracy in my view. Because the press are essential to uncovering all the things that citizens need to know about.”

If you are a member of the press or a citizen who has been denied access to public information, including electronic records, you believe should be available under the open records law, talk to an experienced media and communications attorney. For more information on this area of law, see our civil rights overview.