NIXON WCOG v. STATE (2026)

PART PUBLISHED OPINION

¶1 Jamie Nixon and the Washington Coalition for Open Government (WCOG) (collectively Nixon) appeal the trial court's final judgment in their Public Records Act (PRA), chapter 42.56 RCW, lawsuit against the State and specifically the Washington Legislature (collectively the Legislature).

¶2 Nixon submitted a total of six public record requests to both the House of Representatives and the Senate requesting records related to various materials for which members of both houses previously had asserted a legislative privilege. Some legislators asserted the legislative privilege with respect to the contents of the records.

¶3 The trial court granted partial summary judgment in favor of the Legislature on the existence of a legislative privilege. The court ruled that both article II, section 17 of the Washington Constitution and the doctrine of separation of powers provide legislators with a privilege against the disclosure of certain records under the PRA. Nixon argues that neither source creates a broad privilege against disclosure.

¶4 We hold that the separation of powers doctrine creates a legislative privilege with regard to certain internal legislative records requested under the PRA. Because of this holding, we do not address whether a legislative privilege exists under article II, section 17. In the unpublished portion of this opinion, we reject Nixon's other arguments regarding the trial court's rulings regarding the application of the privilege and the conduct of the litigation. Accordingly, we affirm the trial court's final judgment in favor of the Legislature.

FACTS

¶5 In early 2023, Nixon and WCOG submitted a total of six public record requests to the Legislature. Individual legislators were asked if they wanted to continue to assert legislative privilege. Some of the legislators waived the privilege regarding their records, but others did not. The Legislature produced the records requested, with redactions based on assertions of the legislative privilege. The Legislature also produced unredacted versions of some of the same records from legislators who waived the privilege.

¶6 In April 2023, Nixon filed a lawsuit against the State of Washington, “a public entity that includes Washington's Legislature and various Legislator agencies.” Clerk's Papers (CP) at 1. Nixon asserted claims under the PRA and the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, alleging that the Legislature improperly redacted or withheld records in response to his public record requests.

¶7 The threshold issue was whether the Legislature had a privilege that protected them from disclosure of the records Nixon requested under the PRA. The trial court framed the issue as follows: whether “the Washington constitution provide[s] a privilege against disclosure of any records relating to internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature that operates as an exemption under the [PRA].” CP at 4789.

¶8 Both parties filed cross-motions for summary judgment on the existence of a legislative privilege. The trial court granted partial summary judgment in favor of the Legislature. The court stated,

As a matter of law, article II, section 17 of the Washington Constitution provides a privilege against the disclosure of records revealing internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature;

As a matter of law, the constitutional doctrine of separation of powers provides a privilege against the disclosure of records revealing internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature;

To the extent that it applies, legislative privilege is absolute;

To the extent that records are protected by legislative privilege they are exempt from disclosure pursuant to the Public Records Act by RCW 42.56.070.

CP at 4762.

¶9 The trial court later ruled in favor of the Legislature on various issues regarding application of the privilege and the conduct of the litigation and entered a final judgment in favor of the legislature.

¶10 Nixon appeals the trial court's entry of the final judgment.

ANALYSIS

A. Public Records Act Principles

¶11 The PRA presents a mandate for the broad disclosure of public records. Green v. Pierce County, 197 Wash.2d 841, 850, 487 P.3d 499 (2021). An agency has an affirmative duty to disclose public records upon request unless disclosure is specifically exempt. RCW 42.56.070(1); Green, 197 Wash.2d at 850, 487 P.3d 499. The burden of proof is on the agency to prove that the law supports any refusal to produce requested records. RCW 42.56.550(1); Green, 197 Wash.2d at 850, 487 P.3d 499.

¶12 We review de novo an agency's action in responding to a PRA request. RCW 42.56.550(3). “An appellate court stands in the same position as the trial court when the record consists entirely of documentary evidence.” Pilloud v. Emp. Sec. Dep't, 33 Wash. App. 2d 644, 651, 566 P.3d 124, review denied, 5 Wash.3d 1004, 574 P.3d 574 (2025).

¶13 We construe the PRA's provisions liberally and its exemptions narrowly. Id. But “the PRA must give way to constitutional mandates” because “the constitution supersedes contrary statutory laws.” Freedom Found. v. Gregoire, 178 Wash.2d 686, 695, 310 P.3d 1252 (2013). This includes constitutional privileges. See id. at 702-03, 310 P.3d 1252. In addition, records need not be disclosed if some “other statute” – including constitutional provisions – exempts certain records from disclosure. RCW 42.56.070; see Does 1, 2, 4, and 5 v. Seattle Police Dep't, 4 Wash.3d 343, 372, 563 P.3d 1037 (2025).

¶14 In Associated Press v. Washington State Legislature, the Supreme Court held that individual legislators’ offices are “agencies” subject to the PRA's general disclosure requirements. 194 Wash.2d 915, 927, 454 P.3d 93 (2019). The threshold issue here is whether article II, section 17 of the Washington Constitution or the doctrine of separation of powers supports a legislative privilege from disclosure under the PRA. If the Legislature is correct that the constitution provides for such a privilege, then the constitution supersedes the PRA's broad mandate for disclosure.

¶15 In Freedom Foundation, the Supreme Court held that under the constitution's separation of powers principles, the Governor has a qualified privilege from disclosure of records under the PRA. 178 Wash.2d at 696-98, 310 P.3d 1252.

B. Legislative Privilege Based on Article II, Section 17

¶16 Nixon argues that the trial court erred in granting partial summary judgment to the legislature and ruling that article II, section 17 of the Washington Constitution provides a privilege against disclosure of records under the PRA.

¶17 Article II, section 17 states, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” The United States Constitution contains a somewhat similar provision. Article I, section 6, clause 1 provides that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” This provision is known as the “speech or debate clause.”

¶18 Because we hold below that the separation of powers doctrine creates a legislative privilege regarding PRA requests, we do not address whether article II, section 17 creates such a privilege.¹

C. Legislative Privilege Based on Separation of Powers

¶19 The Legislature's alternative argument is that the legislative privilege derives from the fundamental principle of separation of powers that is inherent in the Washington Constitution. The trial court ruled that the separation of powers doctrine creates a legislative privilege. We agree.

1. Legal Principles

¶20 The Washington Constitution does not contain a separation of powers provision. Freedom Found., 178 Wash.2d at 696, 310 P.3d 1252. However, the Supreme Court has “long described the separation of powers as one of the ‘cardinal and fundamental principles’ of our state constitutional system.” Id. (quoting Wash. State Motorcycle Dealers Ass'n v. State, 111 Wash.2d 667, 674, 763 P.2d 442 (1988)). The separation of powers doctrine has been presumed based on the division of the government into separate branches. Freedom Found., 178 Wash.2d at 696, 310 P.3d 1252.

¶21 The separation of powers doctrine protects the ability of one branch of government to check the other branches. Id. “[W]e test for separation of powers violations by asking ‘whether the activity of one branch threatens the independence or integrity or invades the prerogatives of another.’ ” Id. (quoting Brown v. Owen, 165 Wash.2d 706, 718, 206 P.3d 310 (2009)).

¶22 In Freedom Foundation, the Supreme Court held that the governor was entitled to an executive communications privilege as an exemption to the PRA. 178 Wash.2d at 696-97, 310 P.3d 1252. The court stated,

Courts have widely recognized that the chief executive must have access to candid advice in order to explore policy alternatives and reach appropriate decisions. These same courts have recognized that the communications privilege ensures the chief executive access to such candid advice, promoting the effective discharge of the chief executive's constitutional duties. Refusal to recognize the gubernatorial communications privilege would subvert the integrity of the governor's decision making process, damaging the functionality of the executive branch and transgressing the boundaries set by our separation of powers doctrine.

Id. (internal citations omitted).

¶23 The court rejected the argument that the PRA raises no separation of powers concerns because a PRA request does not involve an interbranch conflict. Id. at 699, 310 P.3d 1252. First, the court emphasized that the separation of powers doctrine protects the integrity of the three branches even if there is no interbranch conflict. Id. The court stated,

While separation of powers issues may sometimes involve conflict between the branches of government, we apply the doctrine by protecting the branches themselves. The communications privilege protects the chief executive's access to candid advice. The PRA implicates this access. The governor may assert the privilege to safeguard the integrity of the executive branch.

Id. (emphasis added).

¶24 Second, the court noted that the people effectively acted as the legislative branch when passing the initiative that resulted in the PRA. Id. “Essentially, attempts to force disclosure of information through the PRA involve a struggle between the legislative and executive powers. This is exactly the type of interbranch conflict the Foundation claims lies at the heart of the separation of powers doctrine.” Id.

¶25 This court in West v. Washington State Legislature recently held that the separation of powers doctrine supports the existence of a legislative privilege as an exemption to the PRA. No. 60104-4-II (Wash. Ct. App. Feb. 24, 2026), https://www.courts.wa.gov/opinions/pdf/D2% 2060104-4-II% 20Published% 20Opinion.pdf. We agree and expand on the analysis in West.

¶26 The Florida Supreme Court recognized the existence of a legislative privilege based on a separation of powers provision in the Florida Constitution even though its constitution has no speech or debate clause. League of Women Voters of Florida v. Florida House of Representatives, 132 So. 3d 135, 144-46 (Fla. 2013).² In that case, various plaintiffs filed a lawsuit against the Florida legislature and sought certain documents in discovery. Id. at 140-41. The court emphasized that the legislative privilege “protect[s] the integrity of the legislative process by not unnecessarily interfering with the Legislature's business.” Id. at 146. The privilege “aim[s] to ensure that the separation of powers is maintained so that the Legislature can accomplish its role of enacting legislation in the public interest without undue interference.” Id.

¶27 The Iowa Supreme Court also relied on its own separation of powers provision to support finding a legislative privilege in the absence of a speech or debate clause. Smith v. Iowa Dist. Ct. for Polk County, 3 N.W.3d 524, 534 (Iowa 2024). In that case, a party in a pending civil lawsuit served subpoenas for the production of documents on several state legislators. Id. at 527-28. The court concluded that the separation of powers provision in the Iowa Constitution as well as other provisions supported recognizing a legislative privilege. Id. at 534.

¶28 Other courts have noted that the separation of powers doctrine provides the foundation for constitutional speech or debate clauses without ruling that separation of powers alone created a legislative privilege. See Gravel v. United States, 408 U.S. 606, 616, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972) (stating that the speech or debate clause “was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch”); State v. Beno, 116 Wis. 2d 122, 141, 341 N.W.2d 668 (1984) (a constitutional provision identical to article II, section 17 “reinforces the separation of powers doctrine, protecting the independent functioning of the legislative branch by preventing interference, intrusion, or intimidation by the other branches”); Edwards v. Vesilind, 292 Va. 510, 524, 790 S.E.2d 469 (2016) (noting that the speech or debate clause in the Virginia Constitution “is an integral piece of the separation of powers framework” and is necessary to “protect the legislature from improper interference by the executive branch and the judiciary”); Ariz. Ind. Redistricting Comm'n v. Fields, 206 Ariz. 130, 136, 75 P.3d 1088 (Ct. App. 2003) (stating that the legislative privilege springs from the common law and is embodied in the speech or debate clause and “the principles underlying our government's separation of powers”).

2. Analysis

¶29 We hold that there is a legislative privilege regarding PRA requests that derives from the separation of powers doctrine similar to the executive communications privilege that the Supreme Court recognized in Freedom Foundation, 178 Wash.2d at 696-97, 310 P.3d 1252.

¶30 The court in Freedom Foundation stated, “Refusal to recognize the gubernatorial communications privilege would subvert the integrity of the governor's decision making process, damaging the functionality of the executive branch and transgressing the boundaries set by our separation of powers doctrine.” Id. at 697. The same statement is true when substituting “legislature” for “governor” and “legislative branch” for “executive branch.” The legislative privilege is necessary to protect the integrity of the legislature's decision making process and to maintain the boundaries between the different branches of government.

¶31 The cases in other jurisdictions cited above support our conclusion that the separation of powers doctrine creates a legislative privilege regarding PRA requests.

¶32 As the plaintiff did in Freedom Foundation, Nixon suggests that the separation of powers is inapplicable because it is a citizen rather than another branch of government that is seeking the records. But the court in Freedom Foundation emphasized that “we apply the [separation of powers] doctrine by protecting the branches themselves.” 178 Wash.2d at 699, 310 P.3d 1252. The court's statement that “[t]he governor may assert the privilege to safeguard the integrity of the executive branch,” id., applies equally to the Legislature. In addition, in this case Nixon is asking the courts to enforce the PRA against the Legislature.

¶33 Nixon also suggests that while the governor may need to privately deliberate on matters, the same is not true for the Legislature. Nixon emphasizes that unlike the governor, the legislature deliberates and makes policy choices in public. We disagree. Like the governor, the Legislature must be free to consider issues and to conduct its business without external scrutiny. The internal communications of the legislators with each other and with staff ensure robust and unimpeded communications that enhance the quality of decision making in the same way the executive privilege supports free and open communication as the governor deliberates.

¶34 We hold that the trial court did not err in granting summary judgment in favor of the Legislature regarding the existence of a legislative privilege regarding PRA requests.

D. Scope of Legislative Privilege

¶35 No Washington case has addressed the scope of the legislative privilege. And most of the cases in other jurisdictions addressing the scope of the legislative privilege involve a privilege based on constitutional provisions similar to article II, section 17 or the federal speech or debate clause rather than separation of powers. Nevertheless, we find these cases instructive.

¶36 In Gravel, the United States Supreme Court held that the speech or debate clause reaches matters that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction or either House.” 408 U.S. at 625, 92 S.Ct. 2614.

¶37 Similarly, in Beno the Wisconsin Supreme Court stated that the constitutional provision identical to article II, section 17 applies to “matters that are an integral part of the processes by which members of the legislature participate with respect to the consideration of proposed legislation or with respect to other matters which are within the regular course of the legislative process.” 116 Wis. 2d at 143-44, 341 N.W.2d 668. And in Edwards the Virginia Supreme Court held that the legislative privilege “applies only to acts within the sphere of legitimate legislative activity.” 292 Va. at 529, 790 S.E.2d 469.

¶38 Conversely, the Arizona Supreme Court emphasized that “legislative privilege only protects the disclosure of documents concerning purely legislative acts and does not cover communications solely about political or administrative acts.” Fann v. Kemp, 253 Ariz. 537, 543, 515 P.3d 1275 (2022).

¶39 These cases provide persuasive insight as to the scope of the legislative privilege. But we need not define the outer edges of the scope of the privilege. Here, the trial court limited its ruling to a specific set of legislative documents: “As a matter of law, the constitutional doctrine of separation of powers provides a privilege against the disclosure of records revealing internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature.” CP at 4762. We hold that that the legislative privilege applies to this category of documents.

¶40 Further, we hold that a legislator may assert legislative privilege for the actions or communications of a legislative aide insofar as the “conduct of the [aide] would be a protected legislative act if performed by the [legislator] himself.” Gravel, 408 U.S. at 618, 92 S.Ct. 2614.

E. Waiver of Privilege

¶41 Nixon argues that one legislator's waiver of the legislative privilege waives the privilege for all other legislators. We disagree.

¶42 The principle underlying the separation of powers – protecting the integrity of the legislature and protecting the legislature from interference from other government branches – would apply equally to individual legislators. And the Supreme Court has held that individual legislators are “agencies,” indicating that their legislative role encompasses the legislator's individual office. Associated Press, 194 Wash.2d at 922-23, 454 P.3d 93. Therefore, we hold that under the separation of powers doctrine, the legislative privilege is an individual privilege that a legislator may assert or waive without respect to another legislator.

¶43 Nixon appears to argue that if one member can waive the privilege with respect to a public record, then the record will be disclosed. In Nixon's view, this obviates the need for a legislative privilege at all because one legislator could waive privilege and disclose a record while another legislator asserts the privilege. But whether an assertion of privilege ultimately is futile is irrelevant to our analysis.

¶44 Accordingly, we hold that the legislative privilege is an individual privilege that may be asserted or waived by individual legislators regardless of another legislator's assertion or waiver of the privilege.

CONCLUSION

¶45 We affirm the trial court's final judgment in favor of the Legislature.

¶46 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

¶143 I agree with the majority that the separation of powers inherent in the Washington State Constitution creates a legislative privilege that exempts certain legislative records from disclosure under the Public Records Act (PRA), ch. 42.56 RCW, as described in the majority opinion. I write separately to explain that I also agree with the majority opinion in West v. Wash. State Legislature, No. 60104-4-II (Wash. Ct. App. Feb. 24, 2026).⁸ Like the majority in West, I would conclude that article II, section 17 of the Washington State Constitution also provides legislators with a privilege from disclosure of records or portions of records that would reveal internal legislative deliberations. West, slip op. at 2. I would also conclude that the article II, section 17 privilege applies in the context of a public records request under the PRA.

¶144 Article II, section 17 of the Washington State Constitution provides, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” Nixon contends that a claim of liability under the PRA does not constitute a “civil action” under article II, section 17 and, thus, this constitutional provision cannot serve as the basis for a privilege or exemption from disclosure under the PRA. Nixon claims that at the time a public records request is made and the legislature has a duty to respond, there is no civil action at issue, and article II, section 17’s privilege cannot apply at that stage. Nixon also suggests that “any civil action” in article II, section 17 refers only to actions for damages and does not include an action seeking disclosure of records and civil penalties under the PRA. Nixon is incorrect for at least four reasons.

¶145 First, to the extent Nixon asserts that a public records request is too attenuated from “any civil action” for the privilege created in article II, section 17 to apply, that ignores the enforcement mechanism that is the basis for this very case. Nixon brought a public records complaint seeking disclosure of records, civil penalties, and attorney fees. The State, in response, seeks a holding that no legislator or legislative entity can be held liable under the PRA in this case for their refusal to disclose records or portions of records that are protected by the privilege created in article II, section 17. The State squarely seeks to avoid civil liability under the PRA by invoking the privilege created in article II, section 17. Nixon cannot avoid the fact that this issue arises in the context of a PRA action to obtain civil penalties and attorney fees.

¶146 Second, to the extent Nixon contends that an action for disclosure, civil penalties, and attorney fees under the PRA does not qualify as a “civil action,” Washington courts have referred to PRA actions as “civil actions.” For example, in Neigh. All. v. Spokane County, the Washington Supreme Court plainly stated, “We hold discovery in a PRA case is the same as in any other civil action.” 172 Wash.2d 702, 708, 261 P.3d 119 (2011) (emphasis added). And in West v. Gregoire, this court explained, “Under the PRA, a requester may seek judicial review of an agency's refusal to produce the requested records via ‘any kind of civil action.’ ” 184 Wash. App. 164, 171, 336 P.3d 110 (2014) (quoting Spokane Rsch. & Def. Fund v. City of Spokane, 155 Wash.2d 89, 104, 117 P.3d 1117 (2005)). In Spokane Rsch. & Def. Fund, the Supreme Court reasoned that enforcement of the Public Disclosure Act, the precursor to the Public Records Act, occurred in a “civil action” rather than a “special proceeding,” like a garnishment, unlawful detainer, or special commitment proceeding for sexually violent predators. 155 Wash.2d at 104-05, 117 P.3d 1117 (discussing former ch. 42.17 RCW (2005)). Nixon offers no compelling reason for us to depart from Washington courts’ understanding of PRA enforcement actions as civil actions.

¶147 Third, a civil complaint seeking statutory penalties, like a PRA action, also fits within the broad definition of a “civil action” that existed in 1889 when the Washington State Constitution was adopted. As Judge Maxa explained in his recent concurrence in West:

The 1889 dictionary defines “action” as “an abstract legal right in one person to prosecute another in a court of justice; a ‘suit’ is the actual prosecution of that right.” A Dictionary of Law at 25. The same dictionary defines “civil” as “[c]oncerning the rights of and wrongs to individuals considered as private persons, in contradistinction to criminal or that which concerns the whole political society.” Id. at 185. Another dictionary defined “action” as “a proceeding taken in a court of law,” and defined “civil remedy” as “one that may be enforced by a private person for a tort, as opposed to indictment and public prosecution.” William C. Cochran, Students’ Law Lexicon, A Dictionary of Legal Words and Phrases at 8, 58. Black's Law Dictionary from the period defined “civil action” as those that “lie in behalf of persons to enforce their rights or obtain redress of wrongs in their relation to individuals.” Black's 1891 at 27. Black's from this era also defines “action” as “[t]he legal and formal demand of one's right from another person or party made and insisted on in a court of justice.” Id.

West, slip op. at 16 (Maxa, J., concurring in part) (emphasis added) (alterations in original). Although one of the definitions recited above refers to a civil action as a “tort,” it does so only in contrast with a criminal prosecution. More importantly, the remainder of the listed definitions are quite broad, referring to a lawsuit brought to vindicate the rights of an individual. A PRA lawsuit may be intended for the public good, but it is also a public records requester's action brought to right the wrong of improper withholding of public records in response to a particular request. And the potential remedies, including an order to disclose, civil penalties, and attorney fees, all benefit the individual requester. Thus, Nixon has failed show to how a PRA action is different from what our Washington State Constitution's framers would have understood “any civil action” to mean.

¶148 Fourth, I would follow the reasoning of the Wisconsin Supreme Court in State v. Beno, where the court applied the legislative privilege even in a state tax action where the legislative staffer who was subpoenaed was not a party to the action. 116 Wis.2d 122, 341 N.W.2d 668 (1984). The Wisconsin Constitution contains a clause identical to Washington's article II, section 17. The Beno court interpreted that constitutional provision to protect legislative staff from responding to the subpoena issued in that case even though the claim was not one for damages in tort or contract, and even though the legislative aide was not a party to the action. Id. at 139-40, 341 N.W.2d 668. The Beno court's reasoning makes sense; allowing the privilege to apply in the context of some lawsuits but not others would undermine the very purpose of the privilege, to ensure free flowing and robust internal communication to support legislative deliberations. See id. at 142, 341 N.W.2d 668 (emphasizing the purpose to avoid chilling “the ardor of a member to speak and act freely in the performance of legislative functions”).

¶149 For these reasons, I would also conclude that a legislative privilege arises from article II, section 17 and it applies in the context of PRA actions. I would hold that under article II, section 17, the legislature, individual legislators, and legislative entities cannot be held liable under the PRA for withholding internal records or portions of records that divulge legislative deliberations.

FOOTNOTES

1.   But see West v. Washington State Legislature, No. 60104-4-II (Wash. Ct. App. Feb. 24, 2026), https://www.courts.wa.gov/opinions/pdf/D2% 2060104-4-II% 20Published% 20Opinion.pdf (holding that article II, section 17 creates a legislative privilege) & (Maxa, J., concurring) (arguing that article II, section 17 does not create a legislative privilege regarding PRA requests because a PRA request is not a “civil action” as required in that provision).

2.   Unlike the Washington Constitution, the Florida Constitution explicitly states that interbranch encroachment violates the separation of powers. Fl. Const. Art. II, § 3.

8.   https://www.courts.wa.gov/opinions/pdf/D2% 2060104-4-II% 20Published% 20Opinion.pdfv

Maxa, J.