WoLF filed a motion last week requesting our client, Andrea Kelly, be granted the full ability to intervene in the ACLU of Washington’s lawsuit, to argue for lawful disclosure of records about male transfers into Washington State female prisons. The ACLU teamed up with a group called Disability Rights Washington (DRW) suing in federal court to prevent Kelly’s Public Records Act request from being completed by the Washington State Department of Corrections (DOC). 

Despite being listed as a “defendant” on her court summons, Kelly was only given the status of “interested party” on the initial lawsuit. Now, she is being prevented by the State of Washington from having her full interests represented in the case. Our motion on Kelly’s behalf, if granted, would give our client the ability to protect her interest (the release of the requested public records) in the lawsuit. 

Although the DOC is named as the defendant in the lawsuit, our client’s interests are not adequately represented by the DOC. In fact, the timeline of events leading up to the ACLU’s injunction seeking to suppress the release of the records suggests that the DOC not only has no interest in the records, but is actively working to aid in the suppression of these documents by having “tipped off” DRW and stalled producing records responsive to Kelly’s request, to give DRW time to file federal court claims trying to stop disclosure.  

The Washington Public Records Act (PRA) guarantees that citizens have the right to access public records, and requires the government to respond to requests within five days. Only personal student or patient information, employee files, and some investigative records are exempt. 

Kelly’s request asked for documents pertaining to:

1. A complete and accurate count of inmates who identify as transgender (gender identity differs from sex identified at birth) in the custody of the Washington Department of Corrections [please break this information down by location]

2. Number of inmates that have been transferred from a men’s facility to a women’s facility since January 01, 2021

3. Total number of male persons who identify as female, non-binary, or any other gender identity that are currently housed in a women’s facility

4. Number of inmates who have transferred from a women’s facility to a men’s facility from January 01, 2021 to March 18, 2021

5. Number of female persons who identify as male, non-binary or any other gender identity that are currently housed in a men’s facility

While the DOC and the State of Washington have a legal obligation to carry out the letter of the law, the State has no interest in holding itself accountable. This is the role of civil society — the media, trusted organizations, and intrepid public citizens like Andrea Kelly, aided by powerful transparency tools like the PRA (which is similar to the federal Freedom of Information Act).

The ACLU of Washington, which has specifically advocated for the expansion of the Washington Public Records Act in the past, has abandoned its role as a trusted government watchdog and defender of civil liberties in favor of working hand-in-hand with the Washington Attorney General (which represents the DOC in court) behind the scenes to suppress civil rights. 

While the ACLU has become derelict in its duties, citizens like our client have had to pick up the slack and fight for their right for information from the government that is meant to serve the public. 

As our motion states:

“The point of the PRA, like FOIA, is precisely to streamline dissemination to the public information about government actions and policies without requiring any requestor to demonstrate a special need or justify her desire for the information or even demonstrate the kind of injury that confers standing for a litigant to get into court and avail herself of discovery procedures that would yield the same information. Plaintiffs, however, rushed into federal court (bypassing the PRA’s own, specific injunction procedure and ignoring the presumption that the DOC will apply the PRA and its exemptions legally and appropriately) to try and stop Kelly from pursuing (much less realizing) the benefits conferred by the PRA.”

Why the Washington Department of Corrections is going to such lengths to avoid its legal duty to disclose information to the public is not known, but the answer may lie in the information DOC hopes will never come to light about the impact of housing male prisoners in women’s prisons.

Earlier this month, a groundbreaking LA Times article revealed that male prisoners in California had made 255 requests to transfer into women’s correctional facilities in the first three months of the state’s new prison housing policy, which allows violent male offenders, including sex offenders, to be placed in women’s correctional facilities based on their self-proclaimed “gender identity.” 

The risks to incarcerated women, most of whom have already survived abuse and sexual assault in their lives, are immense. Women have already been raped, harassed, and punished by violent men placed in California women’s prisons. 

According to reporting by KIRO Radio, the same process may now be underway in Washington State. 

The information requested by our client on the aggregate numbers of male prisoners who have been transferred to women’s prisons in Washington has the potential to reveal a similar scandal.

How you can help

WoLF relies on generous donors to fund our legal advocacy work, including this case. Join our fight today by donating to the WoLF Legal Advocacy Fund to support our fight to defend women’s rights and free speech. The WoLF Legal Action Fund supports our ongoing legal programming including litigation, petitions, amicus briefs, public records requests, legal counsel, and more! If you would like to support WoLF’s overall mission, donate here to support those areas most in need!