Op-Ed: Sen. Chase made a few false and misleading statements

Monday, August 6, 2018

Keith Smith
Keith Smith is a Centrist Party candidate seeking election to the Washington House of Representatives to represent Legislative District 32.

By Keith Smith

Senator Maralyn Chase (D-Shoreline) penned an op-ed about the public records debacle earlier this week, and it in she made a few false and misleading statements which need to be corrected.

While reciting the history of the Public Records Act (PRA), Sen. Chase stated that it was designed to allow the public access to records from certain agencies. Agencies like the Departments of Licensing and Transportation, and that the Legislature followed different rules. That implies that the Legislature ought to be held to a different standard than other departments.

Unfortunately, the PRA specifically defines an “agency” as any state office. Since Senator and Representative are state offices, it would serve to reason that they are all subject to the PRA. Additionally, all local governments are fully subject to the PRA, including city and county councils, which are legislative branches of local government. If the PRA was not supposed to apply to legislative bodies why are those entities not exempted? 

Lastly, her argument basically takes this form, “We’ve always done this, so we should be able to continue to do it.” As a society we would not accept that argument from anyone in court. In fact, next time you get a traffic ticket try telling the judge that you have always sped down a specific road. See how far that argument gets you. Breaking the law in the past is not a defense to breaking the law in the present.

Sen. Chase then moves on to say that the Court ordered the legislature to pass a new PRA, “…Thurston County Superior Court Judge Chris Lanese ordered the State Legislature to pass comprehensive legislation on public disclosure…”. This statement is completely false. 

Judge Lanese’s order is available online, and nowhere in it does he state that the legislature has to pass any law. He wrote that the legislature must follow the law as written. It would be completely improper for a court to issue a ruling that the legislature must pass any law. It would violate the separation of powers, and Judge Lanese actually says that in his ruling. 

Even in the McCleary case, the Supreme Court was careful to say that they were not ordering lawmakers to pass any new laws. Just that the laws they had already passed, and the State’s Constitution, required them to fund education. The Court left the rest up to them. Judge Lanese did not order the legislature to pass a new PRA, they chose to do that on their own.

Next, Sen. Chase writes that the legislature created the new PRA with advice from the Attorney-General’s office. While that is possible, it completely mischaracterizes the AG’s involvement in the case. First, the legislature hired outside counsel, at tax-payer expense, to defend them in this lawsuit. 

The AG’s office actually filed a brief with the court arguing that the legislature was wrong in the way that they interpreted the PRA. Also, it would be malpractice for the AG to give advice to the legislature about a court order without reading it first. Meaning that if the AG’s office did help with the new bill, it almost certainly would have told the legislature that the court did not order them to craft it. Lastly, Sen. Chase admits that the bill was not written by the AG, but by the legislature’s outside counsel.

She goes on to say that the bill would increase transparency. Unfortunately, the pesky definitions from the PRA undercut this claim too. From the PRA, “’Public record’ includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” 

So, when the Senator says that the public would have access to correspondence with lobbyists and legislative calendars for the first time, I can only assume that she means the legislature is going to be releasing documents that the public already had a right to for the first time. She also undermines her own argument in the next paragraph by stating that under the existing PRA the legislature had to release unredacted constituent correspondence upon request.

If I am following the argument correctly: when a member of the public sends an email to their representative, all that person’s personal data is released, but if a request is made for correspondence between a lawmaker and a lobbyist, that is off limits and will be shielded. 

Not only is that fearmongering at its worst, it is also not true. The current PRA allows for information that is “not of legitimate concern to the public” to be shielded from disclosure. Some examples would include a person’s name, address, phone number, SSN, and health information. All of which are examples the Senator gives for things that she would have no choice but to disclose if asked.

The Senator also states in her op-ed that the new PRA “codifi[es the] Legislature’s current interpretation of the Public Disclosure Act”. Meaning that a judge told the legislature that they were misinterpreting the PRA, so they just changed the law to make their interpretation correct. They also made sure the law only applied to records created after July of this year. Meaning the public had no access to any previous records.

In 2018 this seems to be the norm, a politician does something that the public does not like, and they just give “alternative facts” to make it seem like they were right all along. I am used to seeing this at the national level, but I expect more from our local leaders.


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