Washington State Legislative Records

The state of Washington uses two different public records laws.  If an individual is looking for records concerning the Washington State Legislature then the Legislative Records Act applies.1  Records sought from any other state or local agency is governed by the Public Records Act.2

This article will focus on the law itself.  On my Intermediate Scrutiny blog, I have argued the Legislative Records law is facially unconstitutional, but that is beyond the scope of this article.  This article is just to provide an introduction into Washington 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.

As explained on my Intermediate Scrutiny blog:

“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.”

Interplay Between Public Records Laws

The definition of Legislative Records is incorporated into the definition section of the Public Records Act.3  Since the statute has never been litigated, there is no guiding authority as to how Legislative Records interplays with the Public Records Act.  There are two ways this could be interpreted under a fair reading of the statute.

First, Legislative Records could be interpreted to be incorporated by reference into the Public Records Act.  Since the Washington Legislature included Legislative Records in the definition for what a public record is under the Public Records Act, then the structure from the Public Records Act might apply to it (provisions for publishing procedures, charges, training, etc.).

The argument against this interpretation is two-fold.   First, Legislative Records are older than the Public Records Act and could have been fully incorporated into the Public Records Act if the Washington Legislature wished (it has had more than 40 years to do so).  Second, there is conflicting structure between the two statutes.  The Public Records Act favors disclosure of records (duty to publish procedures, the construction is to be liberally construed, etc.).  Legislative records, other than the final bill, really seem to a decision Legislator makes a case-by-case basis on whether he or she wants to file it or not.  It would be very difficult to harmonize these inconsistencies.

Second, Legislative Records are a completely different concept.  They are mentioned in the definition with public records in the Public Records Act as more of a reminder that they are there.  In fact, the definition of public records under the Public Records Act could be read like it is divided into two parts.  Sub-point a would be the definition of public records under the Public Records Act.  Sub-point b would be the Legislative Records definition, but acting as a reference to the Legislative Records law, not to incorporate it.  This way, those reading the law will at least have some warning that different laws apply to different agencies.

  1. Wash. Rev. Code § 40.14.100, et seq.
  2. Wash. Rev. Code § 42.56.001, et seq.
  3. Wash. Rev. Code § 42.56.010(3).

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