Legislative Disclosure: Impacts and Implications of AP v. Washington Legislature

Strong “sunshine” laws like the Washington State Public Records Act (PRA) are crucial toward assuring government accountability and transparency, hallmarks of our democracy. But PRA compliance can be costly and time-consuming, especially to smaller agencies that may find themselves suddenly bombarded by requests, sometimes from harassing requesters. For years, agencies calling for sensible PRA reform have remarked that change would not come until the state’s lawmakers were also subject to the PRA and could experience the need for reform firsthand.

That day finally arrived on Dec. 19, 2019, when the Washington Supreme Court issued its opinion in Associated Press et al. v. Washington State Legislature, et al., affirming a 2018 trial court ruling that the offices of individual legislators—but not the institutional legislative bodies themselves—are “agencies” for purposes of the PRA and therefore subject in full to its strict records disclosure mandates.

The PRA was originally enacted via initiative along with Washington’s campaign and contribution law (CDC) as a single law, and for 35 years the two were codified together within former chapter 42.17 RCW as the Public Disclosure Act. Even after being recodified as separate laws, the PRA and CDC continued to include identical definitions of “agency” and “state agency.” RCW 42.17A.005(2); RCW 42.56.010(1). However, while the CDC expressly defines “agency” and “state agency” as including “the office of a member of the state house of representatives or the office of a member of the state senate,” the PRA does not. Nevertheless, the court in Associated Press reasoned that, given the close relationship between the two laws and their joint enactment, individual legislators’ offices were plainly and unambiguously “agencies” for purposes of the PRA as well as the CDC. Whether the court will continue to look to CDC for interpretation of PRA issues in the future remains to be seen.

The Associated Press decision means that members of the Washington House of Representatives and Senate must now search for and turn over their emails, calendars, working documents, and more upon receipt of a request for such, just as local government and other agency officials have been doing for years. The institutional bodies of the House, Senate, and Legislature as a whole, on the other hand, will continue to enjoy the PRA’s limited disclosure mandate for the office of the secretary of the Senate and the office of the chief clerk of the House of Representatives. RCW 42.56.010(3). Thus, those seeking records from the Legislature are better suited going to individual lawmakers’ offices to request documents, rather than directing their requests to a central repository, such as the offices of the House clerk or the Senate secretary.

Some open government advocates feel that the court’s ruling in Associated Press did not go far enough and have expressed concerns that the institutional bodies could attempt to circumvent public disclosure by failing to disseminate records to the offices of individual legislators, where the records would then be subject to public inspection and release. In its opinion, however, the court called such fears “overblown.” Only time will tell the consequences of the Associated Press decision. In the meantime, individual legislators and their attorneys should familiarize themselves with the PRA and the many potentially applicable exemptions and prohibitions on release that are scattered throughout state and federal statutes and case law, and quickly—both the House and Senate have already seen a significant increase in number of public records requests received since the court’s ruling in Associated Press.  

Of course, it’s still possible that lawmakers will pass legislation removing themselves from the PRA (as they attempted to do in 2018) following release of the trial court’s decision in the Associated Press case, when they hastily passed Senate Bill (SB) 6617, vetoed by Gov. Jay Inslee on March 1, 2018. Given the public outcry following passage of SB 6617, it seems unlikely the Legislature will try this again. Instead, we are likely to see more measures like House Bill (HB) 2466, which would codify the decision in Associated Press, and hopefully in time, bills addressing harassing requesters and allowing agencies to recover their costs associated with document production. Now that lawmakers themselves can experience the benefits and burdens of the PRA firsthand, other Washington agencies may finally see the kind of common-sense PRA reform they’ve long been lobbying for.