Ep. 25 Are Kruse's Texts With Lawmakers Public Records?

Ep. 25 Are Kruse's Texts With Lawmakers Public Records

[AI VO] (0:00 - 0:27)

Before we start, a quick heads up. Some of the voices you'll hear reading documents in this podcast are AI generated, but the words are real. They come straight from public records, produced by real people inside government.

Further, if you're a public employee who's been asked to bend the rules, or if you've seen something that just doesn't sit right, we want to hear from you, confidentially, off the record. Your identity stays with us.

[Kruse] (0:32 - 0:41)

I don't believe you should be able to, as a state lawmaker, even freaking use the delete button. I think we should pry it off of people's keyboards. Shouldn't be able to delete shit.

[Nixon] (0:41 - 2:04)

Shouldn't be able to delete shit. You know what? Brandi Kruse and I still agree, completely.

State lawmakers should not be able to destroy records of the public's business, simply because those records are inconvenient, embarrassing, politically damaging, or sitting on somebody's private cell phone, instead of a government issued laptop, right? We, the public, pay them. The public has a right to know what they are doing.

We should be able to check receipts. That was Brandi's position. It was my position.

It remains my position, which is why things have gotten a little awkward all of a sudden. Because now, we here at the Public Records Officer Podcast have learned that Brandi has a whole bunch of text message conversations with Washington state legislators and legislative staff. And she is currently fighting a federal court to keep those communications from being disclosed in discovery.

Now, before the anti-Kruse group grabs their pitchforks, there is an important legal distinction here. Brandi might actually have a legitimate argument for keeping at least some of those communications out of federal discovery. And I still have a legitimate right to ask the lawmakers on the other end of those conversations for their copies under Washington's Public Records Act.

These two ideas are not contradictory, and that distinction is exactly what makes this story so damn interesting.

[AI VO] (2:07 - 2:17)

You're listening to the Public Records Officer Podcast, where we fight for your right to know. Now, here's your host, Jamie Nixon.

[Nixon] (2:24 - 3:12)

Hello and welcome. This is the Public Records Officer Podcast. I am your host, Jamie Nixon.

Today, we are revisiting somebody who has appeared on this show before. Political commentator and self-avowed independent journalist, Brandi Kruse. Regular listeners might remember that I once did an entire segment agreeing with Brandi about the legislature's records retention practices.

Yes, me, agreeing with Brandi. Oh, cats and dogs living together, mass hysteria, right? But she was right.

After learning that Washington House lawmakers could automatically delete emails after 30 days under certain circumstances, Brandi called it, quote, horrifying. And then she gave us what remains one of the greatest accidental open government slogans I have ever heard.

[Kruse] (3:12 - 3:13)

Shouldn't be able to delete shit.

[Nixon] (3:13 - 13:59)

I mean, LFG, let's put that on a T-shirt already, right? In that earlier episode, I explained why preserving lawmakers' communications matters. Without those records, you may never know who was lobbying your representative, who was influencing a policy decision, who suggested an amendment, or what conversations were taking place outside public view.

Brandi's position was even more categorical than mine. She said lawmakers shouldn't even have a delete button. And that brings us now to her current federal court situation.

Brandi Kruse, Jonathan Choe, and Ari Hoffman are suing the Washington State House of Representatives and others over the denial of legislative press credentials. The House's defense includes an argument that the plaintiffs may have engaged in advocacy or public policy activity, which would be inconsistent with the House's credentialing standards. So, during discovery, the House, understandably, started asking for their communications, including communications with legislators.

And this is where the parties hit a wall. On September 28th, last week, the lawyers filed a joint discovery dispute statement spelling out exactly what they were fighting about. The House says these communications are relevant because the plaintiffs themselves put their qualifications for press credentials at issue.

If they claim they are journalists rather than political advocates, the House says it is entitled to discover evidence bearing on whether or not that is true. Kruse and company say the House is going way too far with this request. They accuse the House of seeking intrusive private communications with friends, sources, and legislators that the House did not possess or rely upon when it originally denied the press passes.

And here is where I want to be fair to Brandi and her group. There is a real reporter shield law in Washington. This is not something her attorneys invented last week or anything like that.

RCW 5.68.010 protects news media from being compelled to reveal confidential sources and protects news information obtained or prepared in the process of gathering news. For some categories of news gathering material, a party seeking disclosure has to clear a fairly substantial statutory test, including showing that the information is highly material, necessary, unavailable through reasonable alternatives, and supported by a compelling public interest. Journalists protect sources.

They should. I protect sources. If somebody inside government comes to me and says, Jamie, I'm giving you this because something is wrong, but if my boss finds out I'm screwed, I don't respond with like, you know, excellent, can you give me your full legal name, home address, and social security number for the show notes?

You know, that would be pretty shitty. So Brandi's argument deserves to be taken seriously here. Right?

The problem is the breadth of what her side is claiming. The House says the plaintiffs have asserted protection over an enormous universe of communications. According to the joint filing, Kruse considers all of her communications protected, while Cho and Hoffman have taken similarly broad positions involving reporter privilege and the First Amendment.

The House says the plaintiffs have produced only selected material. And then there is the privilege log, the privilege log. The plaintiffs filed it on September 29th.

And suddenly we learned something very important. For Kruse alone, the log contains entry after entry described simply as text messages with a legislator. Then another, right?

Text messages with the legislator. Then another. And another.

And another. I count at least 11 separate privilege log entries expressly describing Kruse text message communications with a legislator. There are additional entries involving legislative staff.

The log also identifies conversations with people who sometimes work with PACs or initiatives, including one thread containing photographs from a Let's Go Washington event. Now that does not tell us who those people are. It does not prove lobbying.

It does not prove Project 42 involvement or that anything improper occurred. And importantly, the log does not tell us who the legislators are or when most of these conversations occurred. And that is because Brandi's side is arguing that even identifying the participants and the dates would reveal protected information.

The House says that makes the privilege log inadequate. Kruse's side says identifying those details could itself expose confidential source relationships. Federal District Court Judge David Estudillo now gets to sort all this out.

But here is where my role in the story becomes a little strange. Long before this federal privilege log appeared, I was already looking for these communications. In April 2025, I filed a Public Records Act request with the Legislature seeking records related to Kruse and Choe's legislative press access, including records involving political activity, advocacy, communications with legislative offices.

Well, apparently somebody told Brandi. Because in June 2025, she posted about me on X. She called me a crazy person, an online stalker, and a fake open government advocate.

Which, you know, credit where credit's due, that's an impressive amount of character development squeezed in one tweet. Well done. She complained that I kept filing public records requests for her communications with state Republican lawmakers, right?

And then she wrote something particularly interesting in that same post. She said, quote, I talked to the Rs a lot about how horrible D policy is. Okay.

Remember, that's Brandi saying that. That's not me speculating. She publicly acknowledged that she talked to Republican legislators a lot.

And she characterized those conversations, at least generally, as discussing Democratic policy. Again, that doesn't make her a lobbyist. That doesn't prove that.

Reporters talk to politicians. Political reporters talk about policy. I have conversations with lawmakers.

That is not the point. The point is that more than a year later, we now have an independent federal court filing confirming that a significant collection of Kruse communications with legislators and legislative staff actually exists. And now we have two completely different legal systems approaching those communications from opposite directions.

On one side, it's federal discovery. There, the question is essentially, can the government force the journalist to surrender private communications with people the journalist says are news sources? Perhaps not.

Some may be protected by Washington's reporter shield law. Others might be protected by the First Amendment. Maybe the judge decides some of the requests are irrelevant or disproportionate.

It's possible the House gets some of these and not others. And that fight is what's happening in the federal court about this. But my PRA requests ask a different question.

I'm not demanding Brandi Kruse's phone. I'm asking government officials for government records. And that distinction matters here.

The Washington Supreme Court has held that individual legislators' offices are agencies subject to the Public Records Act. And the Washington Supreme Court held years ago that a government employee cannot take a work-related text message outside the PRA merely by conducting government business on a privately owned phone. If a text is sent or received in the official's government capacity, the fact that it sits on a private device does not automatically make it private.

So imagine a hypothetical. A legislator and Brandi exchange texts about their kids. Maybe their favorite Van Halen record or whether Angel's Envy makes a respectable rye, which they do.

That's probably none of my damn business. The presence of a legislator in a conversation does not magically transform every message into a public record. That is true.

But suppose the conversation turns to pending legislation or legislative strategy or press access policies perhaps or other government action. Now we are asking a very different question. And interestingly, Brandi's own federal privilege assertions complicate any attempt to characterize these conversations as purely personal.

These aren't transitory discussions. Her privilege log says some of these conversations involve news leads, public policy, and source relationships. It repeatedly argues that the people she is communicating with could be considered news media sources because issues are being raised and highlighted for her.

That may help her in federal court. But factually, it also tells us that these are not just like, happy birthday. How are the kids?

Did you see the Mariners last night? Some of these conversations appear to involve precisely the sort of public policy discussion that makes the government side copy relevant to a PRA analysis. And here is where the two legal regimes diverge.

The reporter shield statute is aimed at compelled disclosure from news media and certain efforts to circumvent that protection. A public records request directed to a legislator asks whether the government possesses a public record. Those are not the same legal question.

Could lawmakers still claim exemptions? Of course. This is the modern Public Records Act.

There are enough exemptions floating around to wallpaper the Capitol at this point. If a legitimate exemption applies, claim it. If part of a record is exempt, redact the exempt portion.

But Washington law says that when an agency withholds a record in whole or in part, it must identify the specific exemption authorizing the withholding and briefly explain how that exemption applies. So Brandi considers this private is not an exemption under the PRA. Brandi does not want Jamie Nixon to see this is definitely not an exemption under the PRA.

Believe me, if it were half the government of Washington would be citing it by now. And that's what makes Brandi's older comments so fascinating.

[Kruse] (13:59 - 14:00)

Shouldn't be able to delete shit.

[Nixon] (14:00 - 18:13)

Right? Because why shouldn't lawmakers delete shit? Because the records don't belong to them.

Because someday somebody might want to know who their lawmakers were talking to, what they were talking about, who was trying to influence government and how decisions are being made. Right? That is the principle.

And I agree with it. What I don't know yet is whether the legislators on the other end of Brandi's text messages preserve those records. I don't know whether the legislators involved are Republicans, Democrats or both.

I'm guessing mostly Republicans, but I don't know. I don't know whether the messages discuss legislation, journalism, advocacy, lunch plans or all of the above. The plaintiffs have deliberately withheld the names and dates and the court has not yet resolved that particular dispute.

Those are important limitations. But I now know something I did not know before. Those communications exist.

And that matters because my House records request has been sitting open for well over a year. Federal discovery may now give us an independent way to check the legislature's homework on my PRA request. Right?

I mean, if the federal case eventually tells us Brandi Kruse exchanged text with legislator X on date Y about topic Z, then I can turn around and look at the legislature's response to my Public Records Act request. And, you know, did legislator X produce it? Did their office find it?

Claim an exemption? Did they say no responsive records exist? Was it deleted?

I mean, these are all answerable questions. And if the legislature produces everything it should, great. Seriously, I don't file public records requests hoping agencies screw up.

I file them because the public is entitled to the records and I have some interest in what it is I'm requesting. However, if an independent federal case establishes that government business communications existed and the legislative offices responsible for its copy can't account for it, well, that will be a different podcast episode, won't it? There is one more piece of this that I think Brandi herself deserves the opportunity to answer.

She can make a completely coherent argument that says something like, you know, I believe reporters should be able to protect their sources from government discovery and I also believe lawmakers should comply with the public records laws. Those positions can coexist. In fact, that might be exactly where she lands.

But if that is her position, and I think the obvious follow-up is pretty simple, right? I mean, Brandi, if I ask the legislators for their copies of your communications about public business and no lawful exemption applies, do you believe they should give them to me? Because from where I'm standing, that's the part that matters.

Not whether I get to search her phone, I don't. Not whether reporters should surrender confidential sources every time a government lawyer asks them to, they shouldn't. The question is what the government owes the public when those same communications are sitting in government hands.

And given Brandi's prior position, I sincerely hope we still agree. Lawmakers shouldn't be able to delete shit. They shouldn't be able to hide shit without a lawful exemption either.

And if Brandi Kruse's conversations with legislators are public records, then the public is entitled to ask for those receipts, including me, Brandi. Like I said in episode six, transparency isn't a team sport. It isn't a Democratic or a Republican value.

And it cannot depend on whether the public record happens to contain the name of somebody you love. Government records belong to the public. So for now, we wait to see what Judge Estudillo does with the federal discovery fight.

And separately, I'm going to keep doing what Brandi once complained I was doing, asking lawmakers for the records. Because apparently...

[Kruse] (18:13 - 18:14)

Shouldn't be able to delete shit.

[Nixon] (18:14 - 18:15)

Couldn't have said it better myself.

[AI VO] (18:18 - 20:00)

That's it for this episode of the Public Records Officer Podcast. A quick note before you go. Some of the voices you heard on the show weren't from real people.

Some were totally synthetic, AI generated to read from public records and legal depositions that are, yep, public. You'll also hear real human voices like live audio from state meetings, and the occasional passionate rant from the show's gorgeous host. Every episode has a full transcript at thepublicrecordsofficer.com.

It breaks down which clips came from humans and which came from our robot friends. Think of it like liner notes for digital democracy. You'll also find links to the original documents and recordings we talked about, hosted on Google Drive, free and public.

So if you want to fact check us, go nuts. That's kind of the point. If this show got you fired up, or even just mildly interested, check out the Washington Coalition for Open Government.

They're a non-profit that fights for transparency, and they've got resources if you want to help, or just learn more. And hey, if you work for the state and you've seen one too many messages accidentally disappear, we'd love to hear from you, confidentially, unless you want to be famous. The Public Records Officer Podcast is a creation of Nixon and Daughter Productions, powered by good coffee, better whiskey, a microphone, a legal tab, and the apparent misguided belief that government should actually be accountable to people.

Which is adorable, really. Thanks for listening. See you next time.

And remember, you're not paranoid. They really did delete it.