Washington State Legislative Records — Constitutional?

There are two public records laws in Washington — Public Records Act1 and Legislative Records.2  Each law was passed in a different year.  Each law uses a different definition for what a public record is and is not.  Each law applies to different areas of government.  They are very different laws.

Washington State Capitol Building
Washington State Capitol Building

Legislative Records are a restrictive form of public records that is only applicable to to the Washington State Legislature.  The main problem with the Legislative Records law is it unconstitutionally allows individual Legislators arbitrarily determine what is or is not a record to be disclosed, violating long-held free speech principles.

It should be be scrapped completely and the Washington State Legislature should be subject to the standards of the Washington Public Records Act same as every other governmental agency.

 

Legislative Records

[U]nless the context requires otherwise, “legislative records” shall be defined as correspondence, amendments, reports, and minutes of meetings made by or submitted to legislative committees or subcommittees and transcripts or other records of hearings or supplementary written testimony or data thereof filed with committees or subcommittees in connection with the exercise of legislative or investigatory functions… — Wash. Rev. Code § 40.14.100.

The definition as written is really confusing, at least to me. And there does not appear to be any guidance on this statute either from the Washington State Attorney General, reported court decisions, or even the state’s public records treatise.3

I will try my best to break down that lengthy, poorly constructed legislative record definition. There are basically two parts to the law: a prefatory clause and the operative clause.  The prefatory clause describes what records are eligible under the law.  The operative clause describes how the eligible records become legislative records.

The prefatory clause runs from “shall be defined as” all the way to “written testimony or data.”  This whole section of the definition defines what is eligible for submission as a legislative record.  There do not appear to be definitions for any of the terms used in the prefatory section.  The statute quoted above is entitled Legislative Records — Defined.  It is a single paragraph providing one definition and it is to what a legislative record is.

Then the operative clause is any of the prefatory documents which are “filed with committees or subcommittees in connection with the exercise of legislative or investigatory functions.” So in other words, once a document is eligible under the prefatory clause, it then must be filed before it becomes a legislative record.

Arbitrariness of Which Documents Submitted

A record only becomes a legislative record after it is filed with a committee or subcommittee.

The statute says that the records must be filed, but it does not say how and when records are filed. This is important because as without statutory guidelines it leaves it up to each individual Legislator to make those decisions. And this section will illustrate the “how” and “when” effectively allows a Legislator to make decision on a case-by-case basis if a record will ever be filed.

The how records are filed refers to the procedure for which records are filed.  The law does not state a procedure for how records are to be filed.  For example, records could be automatically filed (think like a legislative DropBox, similar to the online cloud storage service).  Having records automatically filed would go far to take human opinion is out of it.  On the other hand filing records could also mean, an individual have a piece of paper in hand, walk it down the hall, down two flights of stairs, take a number to wait for the next available legislative records custodian.  This effectively becomes a question of whether each individual Legislator wants to turn any individual records into legislative records.  If a Legislator wishes every conceivable record could be filed automatically like the legislative Dropbox, or on the other hand the Legislator could choose to file nothing since there are no requirements.

The when records are filed refers to the time frame for which records are filed.  The law does not require a Legislator to file records daily, weekly, monthly or even annually.  This is problematic because if individual wants to comment on a topic of public concern the Legislature is working on, for example the possible impeachment of a publicly elected official, and the Legislator does not file the records in a timely manner they will not be available for the individual to comment upon.

As is demonstrated in this section, each and every step of the legislative records process is up to a Legislator’s discretion.  Ultimately, Legislators have complete discretion over their individual work product.

The arbitrariness of records become legislative records is enough to find the law is unconstitutional.

Public Records Requests as Speech

I argue that public records requests are protected speech, and consequently the United States and Washington State constitutional free speech protections apply.

Critics will argue that a request for a public records is not speech in and of itself.  “Speech is something you say.  A request is a step or two before the actual speech occurs.” This argument takes too narrow of what speech is.  There are several constitutional arguments that address this thought.

Well it is important to remember the United States Supreme Court never has provided a definition for the scope of speech because “[i]t is unnecessary to lay down an absolute rule beyond the possibility of exception.”4  So constitutionally, unless a specific court case says public records are not speech, I am not sure how they could be ruled out, so easily.  The United States tends to view the scope of scope of speech broadly because the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”5

Furthermore, the idea that public records are protected speech is evidenced in several doctrinal elements of free speech theory.

Right to Receive Ideas

“In a variety of contexts this Court has referred to a First Amendment right to ‘receive information and ideas.'”6 The right to receive information and ideas is protected because the public and media’s “presence historically has been thought to enhance the integrity and quality of what takes place.”7

The First Amendment protects citizens from governmental interference into their speech.  The purpose of the First Amendment is then directly frustrated, if the legislative branch can restrict the public from receiving information and ideas about the state legislature, with impunity from the judiciary.

Pregnant with Expressive Conduct

The American flag by itself does not say anything, but the United States Supreme Court instructs that some symbols and words are so ingrained in our society that its presence alone could lead to protected speech.  “Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in ‘America.'” 8

Public records requests are also ‘pregnant with expressive content.’ “Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.”9  Without access to the facts, then much of the speech that does occur absent legislative records will be of little value (speech with no basis in fact) or the speech will not occur at all (a prior restraint, see next section).

I would also assert public records assert pregnant expression that is important to the founding and continued functioning of this country as the flag.  Public records signify this nation, as “[a]ll political power is inherent in the people, and governments derive their just powers from the consent of the governed.”10  As a government for the people and by the people, the people are entitled to know what it’s government is doing.  Under a citizen government, even a request for public records is at least pregnant speech because the intent of the request is to make speech about matters of public concern.

A Prior Restraint on Future Speech

Prior restraints stop speech from being made.  The Supreme Court has long held the main purpose of the First Amendment is “to prevent all such previous restraints upon publications as had been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”11

The statute prevents speech in two different forms.  First on a micro level, the impact from the arbitrary power given to each individual Legislator to determine whether and when records are file, inevitably creates a prior restraint upon speech.  Second and on a macro level, when the definition of legislative records is contrasted with its sister law, the much broader and more permissive Public Records Act12 it indicates there is no justifiable reason for the state Legislature to categorically restrict public records as it does.

Conclusion

Legislative records is a deeply flawed statute, and if I persuaded you with this article, an unconstitutional one.  It should be be scrapped completely and the Washington State Legislature should be subject to the standards of the Washington Public Records Act same as every other governmental agency.  Problem Solved.

Joseph Thomas

Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.
Joseph Thomas

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  1. Public Records Act, Wash. Rev. Code § 42.56.001 (2015), et. seq.
  2. Legislative Records, Wash. Rev. Code § 40.14.100 (2015), et. seq. I would be remiss not to note Legislative Records are incorporated into the definition of “public records” in the Public Records Act. Wash. Rev. Code § 42.56.010(3) (2015). The fact that “legislative records” are incorporated into the definition of “public records” is of little significance to the analysis in this article because both types of records are treated in a materially different fashion.
  3. The Office of the Washington State Attorney General developed an “Open Government Resource Manual” which provides information to the public about the Public Records Act and the Open Public Meetings Act, but fails to even mention the subject of legislative records. See Wash. Attorney General, Open Government Resource Manual (October 01, 2015), available at: http://www.atg.wa.gov/open-government-resource-manual. Also, there does not appear to be any reported judicial decisions by the courts to help clarify the matter. One of the few resources, if the only, that acknowledges the distinction is the state’s Public Records Act Deskbook, which provides a short summary briefly describing the nature of legislative records. Matthew J. Segal, Chapter 4 The Scope of the Public Records Act, Public Records Act Deskbook: Washington’s Public Disclosure and Open Public Meetings Laws at 4-4 (2d ed. 2014).
  4. Patterson v. Colorado ex rel. Attorney General of Colo., 205 US 454, 461 (1907).
  5. Associated Press v. United States, 326 US 1, 20 (1945).
  6. Richmond Newspapers, Inc. v. Virginia, 448 US 555, 576-77 (1980) (quoting Kleindienst v. Mandel, 408 U. S. 753, 762 (1972)).
  7. Id. at 558.
  8. Texas v. Johnson, 491 US 397, 405 (1989).
  9. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011).
  10. Wash. Const. art. 1, § 1.
  11. Patterson v. Colorado ex rel. Attorney General of Colo., 205 US 454, 462 (1907) (internal quotation marks omitted).
  12. Public Records Act, Wash. Rev. Code § 42.56.001 (2015).

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Joseph Thomas

Joseph Thomas is a licensed attorney in Washington State whose practice includes constitutional and civil rights law.

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