Appeals court supports ‘legislative privilege’ to withhold documents

The Washington state Court of Appeals ruled this week that the state Legislature has a “legislative privilege” to withhold records of its internal deliberations.

A panel of three judges in Tacoma released its opinion in the case of Arthur West v. The Washington state Legislature, et al. on Feb. 24, 2026. The case was heard on Dec. 4, 2025.

Another panel of judges with the same court has yet to rule on a separate challenge to the Legislature’s claim of a secrecy “privilege” to withhold records in the case of Jamie Nixon, et al. v. the state of Washington. WashCOG is a co-plaintiff in that suit.

In a somewhat divided opinion, the majority of judges in the West case concluded “that both article II, section 17 of the Washington Constitution and the constitutional separation of powers provide legislators with a privilege from disclosure of legislative deliberations under the Public Records Act.”

Judge Bradley Maxa concurred in part, saying the separation of powers supports a legislative privilege.

But Maxa disagreed with the majority that a state constitutional provision supports the “privilege” sought by the Legislature. Article II, section 17 of the state constitution says, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

Maxa argued that a public records request does not constitute a “civil action.” He wrote, “No case in any other jurisdiction has addressed whether a public record request constitutes a ‘civil action.’”

Maxa was one of the three judges who heard the appeal made by Nixon and WashCOG.

The appellate court ruling can be found here: Arthur West v. The Washington state Legislature, et. al.