Here’s a thought: Open up secret negotiations and legislators’ records

We don’t make a lot of exceptions to this one: If you’re a public official in this state, you’re subject to the Public Records Act. Citizens can request your work documents and schedule, your e-mails and briefing materials.

It’s important for building trust in the system and holding officials accountable. The Public Records Act applies to county commissioners. It applies to the state auditor. Even an appointed city arts commission must abide by the law. It applies to everyone.

Well, almost everyone.

There’s one big, glaring exception. State legislators are not required to turn over their documents to the public. The people who write our laws and spend billions of our tax dollars are exempt.

What bothers me, as I put it to the Associated Press this week, is that it’s inconsistent to treat this class of elected officials differently than every other. There’s simply little justification to exclude legislators from a law that applies to everyone else.

Every level of government receives correspondence that some may not wish to share. All public officials get advice and staff analysis that they may not want to explain. That’s a big reason we have a Public Records Act in the first place. What is influencing government leaders, and who, is the public’s business.

A canard
So what makes the Legislature so different that it alone should be exempted? The real reason legislators aren’t subject to the Public Records Act is simple – they just plain don’t want to be.

Inevitably when this topic is broached, someone will bring up domestic violence as a reason legislators should be exempt. It’s true that people do reach out to their representatives for help with domestic violence, social services, and other sensitive matters. But state law already has carve-outs for sensitive matters, and other public officials deal with the same kinds of issues but aren’t broadly exempt from all disclosure.

Nobody wants highly personal matters of regular citizens released simply because they contacted a legislator for help. In debating whether to keep their broad exemption in place, legislators could update the law with narrow, tailored exemptions for sensitive info while still throwing open the shutters to let in the sunlight on their operations. Or, they could self-servingly use domestic violence as an excuse to maintain the convenient status quo.

Why stop there?
Gov. Inslee was asked this week if legislators should give up their exemption. He told reporters, “There is a way to increase transparency, and by that means increase confidence in the system, and still run your operations.”

He’s right that government openness doesn’t have to mean that operations grind to a halt. He’s also right to say that increasing transparency increases confidence in the system.

Of course, if that’s the case, one could ask why that shouldn’t apply equally to the secret negotiations that take place behind closed doors between the governor’s office and state employee unions. Transparency does increase public confidence. It doesn’t mean government can’t do its job. Let’s embrace it!

Perhaps Inslee’s comments provide a path forward. Legislators could agree, yes, it’s time to end their exemption and put themselves on the same footing as all other public officials in the state. Then they could tell the governor, we’ll give up our exemption if you agree to Open Public Meetings Act changes that will end the practice of secret negotiations for good.

Would either side be willing to say that their precious exemption is too important to give up, even if that meant not obtaining greater transparency from the other? Well that would be interesting to find out, wouldn’t it?
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.