On Friday, House public records officials released to Crosscut two dozen batches of records that had been released last year, but that included hundreds of pages either partly redacted or completely blacked out, citing legislative privilege.
The redacted documents provide a glimpse at the use of “legislative privilege,” a legally untested concept for the Washington Legislature that supposedly allows lawmakers to shield certain records from the public. These new claims of “legislative privilege” come after the state Supreme Court ruled in 2019 that legislators had violated the law by claiming to be exempt from Washington’s voter-approved Public Records Act.
Advocates for government transparency say they don’t believe legislators have a constitutional right to hide their records. At least one legal challenge has been filed recently against the Legislature.
The released records shed new light – and raise new questions – about the practice of state lawmakers invoking the Washington state constitution to shield taxpayer-funded documents.
Included among them are documents from a Republican lawmaker who had apparently claimed legislative privilege over a proposed impeachment of Gov. Jay Inslee.
But the bulk of documents dealt with a proposal for a Chinese American History Month. The bill wasn’t controversial in the Senate; Democrats and Republicans voted unanimously to support Senate Bill 5264.
Afterward, however, the bill sparked a fight among House Democrats wary of the conservative advocacy group, led by first-generation Chinese Americans, that was supporting the proposal. On top of that, Democratic lawmakers and progressive advocates worried about how many communities – and which ones – should get special designations and why.
Many of the redacted records were requested by the group proposing the new state recognition, WA Asians 4 Equality. These documents raise new questions about how the Legislature is applying the constitutional authority it believes it has, and what parts of their job some lawmakers don’t want the public to see.
One batch of House records released from the office of then-Rep. Javier Valdez yielded 81 pages of documents on the Chinese American History Month bill. Last year, Valdez, a Democrat from Seattle, was chair of the legislative committee considering SB 5264 in the House. More than 50 pages released by his office are partly or fully blacked out, citing legislative privilege.
But in an email, Valdez wrote that he never made any constitutional bid to hide his records.
“I did not personally request legislative privilege on the records you reference (or any records anyone has ever requested),” wrote Valdez, now a senator after November’s election win. “I do not know which House members or staff may have done so.”
Valdez was one of 25 state lawmakers contacted by Crosscut seeking further information about the practice of legislative privilege and requesting that the privilege be lifted so the public can see the complete documents.
In his email, Valdez authorized the release of his records in their complete and unredacted form. On Tuesday morning, Rep. Mari Leavitt, D-University Place, joined him, authorizing the full release of redacted records from her office relating to the proposal for Chinese American History Month.
Rep. Jim Walsh, R-Aberdeen, didn’t respond to a query sent by Crosscut about a batch of redacted records from his office. But in a news release Tuesday, Walsh announced his authorization of the release of records “produced while drafting gubernatorial impeachment documents.”
"It has come to my attention that my project to draft articles of impeachment of the governor has been drawn into the growing controversy over the use of 'legislative privilege' in Olympia,” Walsh said in a statement.
"I have ordered House staff to release all relevant documents related to the impeachment project,” he added. “While I could make a legitimate argument for legislative privilege on this project, of all projects, I believe this is the best step forward at this time.”
The history of this practice
Lawmakers may not have even known they were invoking a constitutional privilege last year when shielding their records.
In a news conference Tuesday afternoon, Jinkins, a Democrat from Tacoma, said that last year, House staff and attorneys used an “opt-out” system for invoking the constitutional right to withhold documents.
"And the member has been told historically, Let us know if you don't want to apply legislative privilege; if you don't let us know, it will be applied to these records," Jinkins said in a regularly scheduled news availability.
Starting this year, that practice was changed so that lawmakers have to opt in to use their constitutional privilege to withhold documents, Jinkins said, “as opposed to not responding and it being used if they didn't respond to the request.”
It’s unclear when lawmakers began to shield records using the concept of legislative privilege, which was first reported earlier this month by McClatchy. Asked about the practice earlier this month, Jinkins explained that legislative privilege is a constitutional right that allows lawmakers to shield some documents.
"It is a privilege that every individual legislator has, so one of the things that happens in the rare circumstances that it's used … is that an individual legislator, another member, could be on the same email,” Jinkins said. “If they don't assert it, it still becomes a public record. And that's one of the interesting things about it, because it resides with each individual member.”
Jinkins herself has used legislative privilege twice, she said on Tuesday. That includes one of the batches of redacted records released by the House that related to the Chinese American History Month proposal.
That original request for records came from WA Asians 4 Equality, the advocacy group supporting the bill. Asked Tuesday if she would waive her privilege and let the public see the records, Jinkins cited the pending legal challenge against the Legislature.
“Eventually the Supreme Court will tell us if it exists and if so, how it should be used, and so we’ll have a court case on that,” Jinkins said. “So I’m not going to talk kind of about the details about that.”
Jinkins’ redacted records include emails from Sen. Keith Wagoner, R-Sedro Woolley, the prime sponsor of SB 5264. After the Senate passed his bill, Wagoner worked with House Democrats to try to get it through the Legislature and onto Inslee’s desk for his signature.
Wagoner has waived his legislative privilege, which should allow some of the blacked-out parts of Jinkins’ records to be released.
“I am 100% willing to waive my legislative privilege (which was not invoked by me) to any documents related to this topic,” Wagoner wrote in an email. “I will admit, I am curious myself what was redacted and why.”
As recently as Tuesday morning, it seems to have been unclear even to Republican legislative leaders how the practice of legislative privilege functions. While Republican leaders have defended the concept, they appear to be using it less often than House Democrats.
"What appears to be happening ... is that there's a process where records that might be eligible for redaction are identified," said House Minority J.T. Wilcox, R-Yelm, said Tuesday in a regularly scheduled news conference. "And then it appears that the option is offered to the member."
But "It's very unclear to me right now whether or not there is a positive approval of the assertion of privilege, or if it becomes a default," Wilcox said Tuesday morning. "I thought I knew that yesterday, but I've heard some other cases today.
"I'm happy to have your questions, because I want to get to the bottom of it as well," Wilcox added. "Because a whole bunch of this was happening in ways that I didn't understand, and I don't think were very clear to the members."
In an interview later, Wilcox said he was baffled about why SB 5264 failed in his chamber. “I think you know a lot more than I do,” Wilcox said in an interview. “I asked repeatedly to have that bill run, and it was always fairly mysterious” why it didn’t advance.
Reaching out to lawmakers
For this story, Crosscut contacted more than 25 state lawmakers – out of 147 total – about the practice of legislative privilege. Among other things, legislators were asked if they had invoked the constitution themselves – or if someone else did it for them. They were also asked if they would waive their privilege so the public could see their complete records.
Crosscut also reached out to lawmakers who hadn’t claimed legislative privilege but whose redacted documents appear in other public records requests, like Sen. Jamie Pedersen, D-Seattle.
In an email, Pedersen wrote that he had never invoked legislative privilege, and explained the process as he understood it. Pedersen shared an email he received from a legislative public records analyst that he said is routine practice.
That email, called a “member review,” was sent to Pedersen asking if he had any concerns about records about to be released publicly. Other legislative staffers are copied on the email, including Jeannie Gorrell, who as Senate Counsel is one of the lead attorneys at the Legislature.
“When the public records office is about to release an installment of records in response to a request, I typically receive a message such as the attached,” Pedersen wrote. “My normal response is that I have no concerns about the release.”
“I do not have any visibility into the interactions among Senate counsel, Senate administration, and the public records office about whether or when records are redacted,” added Pedersen.
In another instance, Rep. Andrew Barkis, R-Olympia, said that he hadn’t actively sought to invoke the constitution to shield his records in a request that sought documents related to transportation issues. Barkis is the ranking Republican on the House Transportation Committee.
“During the process of gathering the information to fulfill the PRA, it was brought to my attention by the public records officer that several emails with regards to the process in this particular subject ‘fall under a legislative privilege exemption,’” Barkis wrote. “I sent [an] email back and inquired. I was given the particular emails that I can consider. I reviewed and made a few decisions on several emails. That was the last I heard anything until the recent discussion around it.”
“I would lift the redacted areas on the emails if requested,” he added.
Several House Democrats have been less forthcoming, particularly about the Chinese American History Month proposal.
Democratic Reps. Davina Duerr of Bothell and Bill Ramos of Issaquah – who both redacted records related to the bill – joined Jinkins in declining to comment citing pending litigation.
Other Democratic House lawmakers who redacted records about Chinese American History Month – including Reps. Mia Gregerson, Monica Stonier and Melanie Morgan – didn’t respond to Crosscut inquiries.
More light could soon be shed on these and other government machinations. Crosscut has submitted the waivers of legislative privilege by Valdez, Leavitt, Wagoner, Barkis and Walsh to the Legislature’s public records staff to get the complete versions of the redacted documents.
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