Washington State Legislature praises itself for expanding transparency. Media and open government groups call BS

You could, if you cherry-picked your examples, make the case that the Washington state Legislature has been pushing for a more transparent government this year.

After all, Sen. Andy Billig's (D-Spokane) campaign finance legislation has passed the Senate. It introduces a number of ways to eliminate the loopholes that allow political donors to hide their donations from public scrutiny.

You could also point to the fact that the Legislature, after claiming for years that it is exempt from the public records rules that applied to nearly every other agency in the state, is proposing bipartisan legislation officially exposing certain legislative records to public scrutiny.

"This is the biggest step forward for transparency in the history of the Legislature," says Billig "In current practice very little is disclosed from the Legislature — under this bill, there will be dramatically increased transparency."

And all that would be true, from a certain point of view.

Yet media outlets and government transparency advocates have been pretty outraged about the direction the Legislature has gone with public disclosure.

For example, that bipartisan public records legislation?

"That’s just a slimy film of transparency," says Toby Nixon, president of the Washington Coalition for Open Government. "They’re still hiding a lot of very important substantial records."

In a work session yesterday, Tacoma News Tribune and Bellingham Herald publisher Dave
Zeeck called the records proposal a “traveshamockery.”

Asked by a legislator if the proposal would make Olympia more transparent or less transparent, Zeeck didn't hesitate.

"Less. No question in my mind," Zeeck says. "Less transparent."

Similarly, Nixon called the proposal a "TERRIBLE bill" and an "abomination," urging citizens to "do everything in their power to kill it. And don’t hold back on your disgust."

After all, a Thurston County Superior Court decision determined last month, in response to a lawsuit from numerous media outlets (the Inlander was not a party to the lawsuit), that the law actually doesn't exempt the state Legislature, like it had argued for years.

So in effect,  the Legislature actually closed off numerous records that a court ruled should be available for inspection.

In fact, the language officially removes the Legislature from the Public Records Act, with some exceptions. Correspondence with "constituents" wouldn't be included. It wouldn't include communications between legislative staffers. It wouldn't include communication between legislators negotiating over the bill.

It would only include "final dispositions of disciplinary proceedings" — none of the other investigatory or accusatory records about, say, a sexual harassment accusation would be included.

And while it would allow legislative calendars and emails with official lobbyists, it would keep any emails or calendars from before July secret.

In other words, it continues to shroud the state's biggest legislative body in far more secrecy than, say, the records of Liberty Lake Mayor Steve Peterson or the Airway Heights City Council or the Central Valley School Board.

If the Seattle Times wanted to see communication between legislators about the McCleary compromise, that request would be rejected.

If the Northwest News Network wanted the investigatory notes for a sexual harassment investigation against a legislator, that request would be rejected.

If the Inlander wanted to request all emails from or to state Rep. Matt Shea, R-Spokane Valley, concerning his involvement in the Malheur National Wildlife Refuge standoff (we do), that request would be rejected.

Shea himself enthusiastically supported the bill, praising the "balance" it strikes.

"We are committed to transparency and open government," Shea writes in a press release. "The Legislative Public Records Act expands the amount of records available to the public, while preserving the privacy of constituents and whistleblowers." 

Many of these exemptions aren't necessarily a surprise. Rep. Marcus Riccelli, D-Spokane, predicted that a public records bill would pass — but that it might not be broad enough to satisfy the media.

All the local legislators interviewed by the Inlander last year about the public records push, including Sens. Billig and Mike Padden and Riccelli, argued that most changes to how the Washington State Legislature handles public records shouldn't apply to past records.

But the blitzkrieg-quick speed with which this bill was introduced and passed also drew outrage. It represented an unusual end run around the typical procedure, the sort of shortcut normally only used for clear emergencies. There was a work session, but no official committee hearings.

"We believe that this is incontrovertible evidence of the contempt the Legislature has for public participation in the legislative process," Nixon says.

The new law does not allow citizens to challenge denials of records in court. The Legislature would control the records appeal process.

"We’re supposed to believe it’s accountability if an organization gets to review its own work and say it’s fine. It's crazy," Nixon says. "Basically, they can deny any record without any consequence."

The bill could not be undone by referendum. Oh, and you wouldn't be able to challenge the new law in court.

“[People are going to be asking] 'What is it that you’re trying to keep from me? Why can’t I know what’s going on in making this legislation after the fact,”  Zeeck said. “I think you’re running the risk of demonstrating to the people that you’re setting up an imperial legislature.”

Similarly, the exemption for emails between constituents and their legislators leaves open a massive loophole.

“There will be entities who will drop their lobbyists so they can communicate with you in secret,” said Rowland Thompson, director of the Allied Daily Newspapers of Washington.

Some legislators passionately defended the right to private correspondence with their constituents.

“I’m going to do everything I can to protect the privacy of those records,” said Rep. Sherry Appleton, D-Poulsbo. “If you get to read their communication, I have betrayed them. I don’t feel like betraying anybody."

Yet the dark scenario of betrayal Appleton paints is already the scenario faced in every city council and every county commissioner board in the state. The Inlander has made plenty of records requests that have turned up correspondence between council members and constituents.

They are often some of the most illuminating emails about the problems a city is actually facing.

If those privacy concerns are legitimate, Nixon says, the Legislature should address them for all governmental entities, and not just give themselves a special exception. As it stands, he says, the Legislature is "giving the finger" to other levels of government with the same concerns.

Meanwhile, communication about incredibly private information is often already redacted under existing law. To know that, all a legislator would have to do is ask a journalist or a city council member to actually look at the law they're considering exempting themselves from.

"The Lege's sham of a bill, SB 6617, is being sold as a compromise, when it's nothing of the kind," the Tacoma News Tribune's Sean Robinson writes on Twitter. "It's the Legislature walling itself off from accountability, denying you the right to know how lawmakers are being influenced, with no opportunity to seek redress... Do not believe proponents of SB 6617 who say they believe in open government. They don't."

But to Billig, the bill is a compromise, a step forward for transparency. He argues that if the bill didn't pass, the lawsuit would go to the Supreme Court, which would likely rule for the Legislature.

"Quite frankly, the media coverage has been extremely frustrating," Billig says. "It has not been informative or balanced in any way... The real focus should be that this increased transparency from the [what has been the] practice of the legislature for the last 10 decades."

He suggests that the fact that many media outlets were plaintiffs in the public records lawsuit has skewed their coverage.

The bill passed 41-7 in the Senate and  84 to 14 in the House. In the Spokane area, only Republican Sen. Michael Baumgartner voted against the bill, explaining on Twitter that "it would be better to phase in a uniform standard of public disclosure for all elected officials in the state."

The latest act is not the only way the Legislature has been seeking to redefine the public records request process. 

 SECRET BIRTHDAYS

Yes, at times, public records can be abused. Two years ago, we wrote a cover story about "electronic ambulance chasing," the practice of attorneys and chiropractors who make bulk records requests for car accident reports and use them to hit up victims with direct mail solicitations.

The practice caused local attorney Jim Sweetser to file a lawsuit against the Washington State Patrol, accusing them of violating the federal Driver's Privacy Protection Act by disseminating drivers' information. For now, the practice has been put on hold because of an injunction in the case.

But the Legislature hasn't been pushing forward legislation to try to address that. Instead, they're trying to keep birthdays secret.

So while Andy Billig has been fighting for more campaign finance transparency, he's also been a co-sponsor of a bill that exempts public employee dates of birth from public records.

That's not an inconsistency, he argues.

"A maintenance worker on the capital grounds having their birthday disclosed does not seem vital. Knowing who is paying to influence our election is vital," Billig says. "I don’t think those things are in the same neighborhood."

For journalists, birthdays are a small but invaluable resource. We use birthdays to confirm whether the person who shows up in a court record is the same person who works as a legislative aide.

"Without DOBs, I can’t tell the difference between a decades-long prosecutor and a guy convicted of massive real estate fraud," tweets Malheur Enterprise reporter Jayme Fraser. "Or a woman who murdered her kids and a woman who just let her debt get away from her.

But Billig suggests that public employee birth dates being public information is one more reason that somebody might not want to work for the state government. He says that he expects an exception for media outlets to be written into the bill when it passes in the House.

"It is one more reason for people to not work for the state, if they know that their detailed, personally identifiable records are going to be available to anyone who wants them," Billig says. "We want good people working on behalf of the public. We shouldn’t make it more difficult and less attractive for good people to come and work on behalf of Washington."

A less generous explanation, however, is that Democrats are scrambling to help protect the revenue source for some of their largest campaign donors. For years, the Freedom Foundation has been in fights with unions over their ability to send letters to certain public employees explaining that they have a right to not pay union dues.

With the possibility that the Supreme Court will expand the ability of public sector union workers to not pay union dues, the information of who, exactly, is a state employee can be incredibly useful for anti-union organizations.
"The only reason that birthdays are valuable to us, if you get the name and the birthdate of public employees, you can match it against the publicly available voter database," says the Freedom Foundation's Maxford Nelson. "Eliminating birthdays from disclosure would make it much harder for us to send out material to employees about their constitutional rights." 

Speaking of which, another Democratic bill, intended to expand automatic voter registration, features an amendment which would also eliminate birthdays from the voter roll data. That provision never even got a public hearing.

"I don't think there’s any doubt among lawmakers that this is about the unions trying to protect their cash flow," says the Freedom Foundation's Maxford Nelson.

Unions are often among Democrats biggest political contributors. In 2016, Billig received $1,700 from the Washington Federation of State Employees last year and $2,000 from the Washington Education Association. Since 2010, SEIU's committees and PACs have donated more than $10,000 to Billig since 2010 and at least $4,400 from the Teamsters.

But Billig denies his vote was intended to help out unions, arguing that he wanted to protect state employees. He says the donations from unions only represent a small percentage of the overall contributions to his campaigns.

Both journalists and open government advocates scoffed at the argument these bills were related to actually protecting people from identity theft.

"Not one of the ID theft cases filed from 2016 to the present involved the use of public records requests," Robinson, the Tacoma News Tribune reporter, wrote on Twitter.

Nixon also argues that there's absolutely no evidence people are using public records to steal identities.

“It’s like burning down the whole building, from our perspective, because there is a paint chip,” Nixon tells the Seattle Times.