Back in February, many months before the #MeToo movement started a wave of revelations about sexual harassment by powerful men, Northwest News Network public radio reporter Austin Jenkins tried to use public records law to force the legislature to show their dirty laundry.
Inspired by reports of bad legislator behavior in states like Oklahoma and Tennessee, Jenkins made a public records request. It was sprawling, asking for everything pertaining to "substantiated or unsubstantiated allegations of sexual harassment and/or sexual misconduct against elected members of the Washington legislature" stretching all the way back to when he first started to report on the legislature, in 2004.
"During my time here, what have I missed," he recalls thinking. "What have I not been aware of behind the scenes?"
After all, Washington state's Public Records Act, passed by voters in 1972, ensures "full access to public records," letting reporters dig deep into public officials' emails. It's why, two years ago, a public records request from the Spokesman-Review was able to force the city of Spokane to reveal sexual harassment allegations had been leveled against its former police chief Frank Straub.
Yet Jenkins' records request was rejected. The transparency rules that govern Washington state agencies, mayors, city council members and county commissioners don't apply equally to the state legislature. They ultimately make the rules, after all, and they make the exceptions.
But now, two things may change that exemption. First, in September, a coalition of media outlets, including the Associated Press, the Spokesman-Review, the Seattle Times and Northwest News Network, filed a lawsuit, arguing that the legislature was incorrectly interpreting its own definitions.
Second, when the new legislative session starts on Jan. 8, at least two state representatives say they'll introduce legislation that would expose themselves to most of the same public records of everyone else. And for a journalist, that could be crucial.
"Public records are an important tool in the reporter's toolbox," Jenkins says. "When the tool is taken away from you in your beat, it can be somewhat crippling."
ACCESS DENIED
A journalist in Washington state can get the emails of Spokane Mayor David Condon.
They can get the investigation records into the Museum of Arts and Culture's executive director. They can get notes from Spokane Valley planners, the text messages of a city streets director, the investigative notes of a city administrator, memos from a frustrated local police captain, and the job evaluation of a city manager.
But the difference between covering the legislature and the rest of the state and local government is stark.
When state Rep. Jesse Young (R-Gig Harbor) was punished for a "pattern of hostile and intimidating behavior" against his own staff, the Associated Press wanted to get investigative records. The Tacoma News Tribune wanted a copy of the disciplinary letter that had already been leaked to the Associated Press. Both were rejected.
Jenkins and the Seattle Times' Joe O'Sullivan — a former Inlander writer — wanted to see the emails between legislative leaders to find out how they were negotiating the state budget in relation to education funding. Their request was also denied.
It all goes back to a 1995 bill, when legislators unanimously approved a subtle shift to the definition of "legislative records," making the legislature arguably exempt from most disclosure rules.
Subjecting the legislature to the same public disclosure rules was "dangerous to the effective operation of the institution," one of the bill's sponsors, then-Democratic Rep. Marlin Appelwick, tells the Associated Press now. Some legislators argue disclosure rules would constrain their ability to negotiate freely.
But the result, Jenkins says, has sometimes thwarted reporters from being able to tell the full story of how Washington's laws are being influenced.
"Having covered this place for going on 15 years, there is this veneer on the legislative process that suggests it's very public," Jenkins says. "But it's a bit misleading."
The budgets are written behind closed doors, he says. The lobbyists meet with the legislature behind closed doors. In fact, he says, the lobbyists for the more powerful interests — like Microsoft or Boeing — are often the quietest, the most adept at using backchannels to influence legislation behind the scenes.
"There is a tremendous amount of money and influence that is affecting outcomes down there in ways that aren't always transparent," Jenkins says.
But if he were in Idaho? When far-right Idaho Rep. Vito Barbieri refused to tell the Coeur d'Alene Press why he wanted to exempt much of legislators' correspondence from public records, the Press used public records to reveal what he was saying to constituents.
In Washington, reporters can't use the tactic to show what, say, the similarly press-averse Spokane Valley Rep. Matt Shea is saying behind closed doors.
"There are upwards of [800] registered lobbyists and lobbying entities [and] 147 lawmakers," Jenkins says. "There are six full-time reporters covering Olympia. Do the numbers."
SWEATING THE DETAILS
The media lawsuit, filed in September, argues that the legislature is misinterpreting what its 1995 bill did. The lawsuit points out that, in both 2003 and 2005, legislators tried to pass legislation more explicitly exempting legislators from public disclosure rules. Both times, the attempt failed.
Paul Graves, a freshman Republican representative from Fall City, outside of Seattle, doesn't think the legislature's lawyers are wrong about the interpretation. But he does think the law needs to change.
"The Public Records Act applies to every government employee — except legislators," Graves wrote on Twitter last month. "That's wrong, and I'm introducing the Legislative Transparency Act to fix it."
His proposal would subject legislators to the same rules as everyone else.
Meanwhile, Democratic Rep. Gerry Pollet, a board member of the Washington Coalition for Open Government, aims to introduce similar legislation.
"Fundamentally, I believe that the public should know who the legislators are being lobbied by and what kind of commitments they make," Pollet says.
But Pollet says he's still fine-tuning the details. Conversations with several Spokane-area legislators suggest tentative support for making the legislature more transparent, but caution about the specifics.
"I'm not going to push back against something that's well-crafted that will provide transparency," says Rep. Marcus Riccelli, (D-Spokane).
But as the House Majority Whip, he also notes that more disclosure requirements could create complications for legislators.
For example, he says, what about representatives referencing divorce proceedings in emails trying to work out scheduling? What about representatives trying to quietly communicate across the aisle without getting ostracized by their caucus?
"If legislators couldn't have some conversations with each other that are confidential, there would be a slowdown," Riccelli says. "People will lean more toward in-person conversations."
Sexual harassment allegations against legislators, says state Sen. Mike Padden (R-Spokane Valley), should be public record. But he's not so sure about, say, a senator's calendar referencing their doctor's appointment.
"A lot would depend on how the legislation is written," Padden says. "It should be prospective and not retrospective."
It's a notion echoed by several other Spokane area legislators: That new public disclosure rules should only apply to correspondence going forward, not documents from before the law was passed. Under those rules, if Jenkins wanted to resubmit his old rejected records requests, they'd just be rejected again.
Riccelli says that the ultimate bill may not end up going far enough to satisfy some media outlets. Even Pollet suggests that communications between legislators and their legislative aides about development of a bill should still be immune from public disclosure.
"I think something will get passed," Riccelli says. "There's been too much discussion, too much media push, for folks to brush it off."
But Pollet knows getting his bill passed is going to be a challenge. In June, the coalition of Washington state media outlets sent requests to all 147 individual legislators, requesting text messages and their schedules.
"Only three legislators provided the collective news media in the state with disclosure of their calendars and schedules," Pollett says. "That shows how uphill this battle is."
It's a short legislative session this year. It's easy for bills that are popular with the public but unpopular with legislators or lobbyists to die quiet deaths.
And if the public disclosure bills fail? Journalists like Jenkins won't be able to use public records to figure out exactly why. ♦
