Before the lawsuit first arrived in 2017, “you didn’t go to legislative privilege, because the only response that anybody would get is, ‘Actually, we’re not even subject to the Public Records Act,’” according to Victoria Cantore, another former Senate counsel.
“So, like, ‘Pound sand,’ essentially,” said Cantore, who worked in that position from late 2017 through January 2022. “That was the company line for like a very long time.”
‘Not yet recognized’
In January 2018, Thurston County Superior Court Judge Chris Lanese ruled that lawmakers were indeed subject to the Public Records Act, despite claiming otherwise. They had been sued by 10 news organizations – led by The Associated Press – who had sought records about what elected officials were doing. The requests among other things asked for lawmaker calendars, communications related to the landmark K-12 education funding order known as the McCleary decision, and any reports or investigations of sexual harassment at the Legislature.
The attorneys for the Legislature didn’t argue in that case that lawmakers had a legislative privilege, according to the state Supreme Court opinion. Instead, the case centered around whether lawmakers’ individual offices were agencies subject to the Public Records Act, or whether tweaks to the law made by the Legislature – including in 2005 and 2007 – essentially removed themselves from the voter-approved statute.
At that point, legislative attorneys realized they weren’t going to be able to withhold documents much longer, according to Cantore. The House and Senate started gearing up public records offices to finally start processing requests and making documents public. They also changed their approach on legislative privilege, Cantore said: They decided to try and pass a version of it into law.