Court hearing Friday on legislators’ secrecy claim

A campaign by key Washington state legislators to hide more of their work behind a veil of secrecy enters a critical phase with court proceedings this week in Olympia.

Thurston County Superior Court Judge Anne Egeler is expected to hear arguments at 3:00 p.m. Friday in the case of Jamie Nixon and the Washington Coalition for Open Government v. the State of Washington.

Nixon and WashCOG filed a petition against the state in April to challenge the state Legislature’s new and unannounced use of a “legislative privilege” to withhold a surprising array of documents from the public and the press.

The state has moved to suppress all testimony from Nixon and WashCOG that shows the proposed privilege broadly changes past practices, as well as testimony that shows elected officials have no real expectation of privacy to warrant hiding documents from the public.

The state also has moved to suppress testimony that the proposed privilege is essentially unworkable because any one member can disclose documents at his or her whim. This would leave legislative staff uncertain about what content should be hidden.

WashCOG has consistently argued that lawmakers’ use of “legislative privilege” is unsupported by state statutes, state case law and even the state Constitution that legislators cite as the source for their right to secrecy.

In a separate case, another Thurston County Superior Court judge in October affirmed the existence of a “legislative privilege” that lawmakers can use to withhold records of “internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature.” The court intends to “flesh out” that phrase, which could encompass nearly anything that involves lawmaking.

The stakes are enormous. Greater secrecy in the state Legislature would increase the likelihood of undiscovered corruption and invite public suspicion about the legislative process. Citizens would know less about the work of their own Legislature, making it harder for them to hold lawmakers to account.

On a more fundamental level, establishing a new right to secrecy in the Statehouse would tilt the balance of power away from the public and toward their elected representatives. This runs counter to the state Constitution, which reminds us that “All political power is inherent in the people, and governments derive their powers from the consent of the governed.”

“Legislative privilege” is equally troubling as a practical matter. Records requesters have endured months of evolving definitions for the phrase, spreading confusion. Attorneys for the state have argued in court filings that the lack of uniformity is to be expected because each of the 147 legislators decides how and when to use the secrecy claim. Not even lawmakers or their staffs can say for sure which legislators will claim “legislative privilege” at any given moment.

It's a recipe for chaos in a deadline-driven institution that relies on the free flow of information to do its work efficiently and on time.

Legislators have tried before to extricate themselves from Washington state’s open-government laws.

• Lawmakers in 2018 quickly passed a bill that would have exempted the state Legislature from the Public Records Act. The ensuing public outcry prompted Gov. Jay Inslee to veto the bill.

• The state Supreme Court in 2019 held that individual legislators are subject to the Public Records Act. The ruling settled a long-running dispute between media outlets and lawmakers, who claimed for years that the transparency law did not apply to them.

In the latest battle over Statehouse secrecy, House Speaker Laurie Jinkins, D-Tacoma, was instrumental in the chamber’s adoption of “legislative privilege” as a legitimate reason to withhold a variety of records from requesters. She urged other lawmakers to use the secrecy claim to restrict public access to legislators’ records.

Thurston County Superior Court is located in Building 2 at 2000 Lakeridge Drive S.W. in Olympia.